women's history discussion

RESEARCH PAPER 76 The Other Side of the Coin: A Look at Islamic Law As Compared to Anglo -American Law – Do Muslim Women Really Have Fewer Rights Than American Women? Kathleen A. Portuan Miller Professor of Legal Writing This paper can be found in final form at:

16 N.Y. Int’l L. Rev. 65 (2003) This paper can be downloaded free of charge from the Social Science Research Network: http://ssrn.com/abstract=1459040 THE OTHER SIDE OF THE COIN: A LOOK AT ISLAMIC LAW AS COMPARED TO ANGLO-AMERICAN LAW-DO MUSLIM WO MEN REALLY HAVE FEWER RIGHTS THAN AMERICAN WOMEN? Kathleen A. Portuán Miller A BSTRACT It often seems as though American women po ssess superior rights to that of Muslim women; however, the answer is not so simple. The reality is that Islamic law traditionally provides Muslim women with a plethora of rights, but cu ltural extremism has clouded this truth. Extreme cultural practices deceive many into believing that Is lam is at fault. In fact, the extreme regimes, such as the Taliban, do not coincide with the be liefs proffered by the Holy Qur’an. For example, Afghani women were prohibited fr om receiving an education, a practice which is in direct contradiction with the Holy Qur’an. Moreover, while the rights of Muslim women are often understated, the rights of American women ar e often overstated. American women do not possess rights equal to those of American men, a nd they do not receive equal pay for equal work. However, Moroccan women, living in a third-worl d country, are receiving equal pay for equal work. Although American women are citizens of the most advanced country in the world, it is incorrect to assume that thei r rights are more advanced than those of Muslim women under a traditional Islamic regime.

Reprinted with permission from: New York International Law Review , Summer 2003, Vol. 16, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207. Summer 2003] Comparing Islamic Law and Anglo-American Law65 The Other Side of the Coin:

A Look at Islamic Law as Compared to Anglo-American Law— Do Muslim Women Really Have Fewer Rights Than American Women? Kathleen A. Portuán Miller* Introduction Today, 1.2 billion Muslims—one out of every five people—live around the world. 1 Mus- lims are predominately living in Morocco, Algeria, Tunisia, Mauritania, Libya, and Egypt in North Africa; Sudan, Niger, Mali, Senegal, Guinea, Ethiopia, Somalia, Kenya, Nigeria, Tanza- nia, and South Africa in Central and Southern Africa; Jordan, Palestine, Syria, Iraq, and Iran in the Middle East; Turkey, and the former countries of the Soviet Union, including Georgia, Uzbekistan, Kazakstan, Turkmenistan, Tahkistan, Krygystan, and Azerbaidzhan; Afghanistan, Pakistan, and India; Malaysia, Singapore, the Philippines, and Indonesia (having the largest population of Muslims); China, Yugoslavia, Bulgaria, Armenia, and the U.S. 2 Islam, meaning “submission to God,” is the second-largest religion in the world, second only to Christianity’s 2.5 billion followers. 3 Over six million Muslims (followers of Islam) live 1. See E NCYCLOPEDIA BRITTANICA BOOK OF THE YEAR 684 (2002) (quoting the W ORLD ALMANAC ) (listing four million Muslims living in North America; however, the American Muslim Council Report of 2000 lists six mil- lion Muslims living in the U.S.) The American Muslim Council’s office is located at 1212 New York Avenue, Suite 4000, Washington, D.C. 20005.

2.See Jamila Hussain, The Justice of Islam, 25 M ELB . U. L. R EV. 865, 865 (2001) (book review) (naming a multi- tude of countries or areas where Muslims can be found, such as Indonesia, China, the former Soviet Union, sub- Saharan Africa, the U.S., Europe, Iran, Sudan, Saudi Arabia and Pakistan); T.S. Twibell, Implementation of the United Nations Convention on Contracts for the International Sale of Goods (CISG) Under Shari’a (Islamic Law):

Will Article 78 of the CISG be Enforced When the Forum Is in an Islamic State?, 9 I NT'L LEGAL PERSP . 25, 32 (1997) (stating that 69 countries have Muslim populations, including sub-Saharan Africa, Asia, Indonesia, Bang- ladesh, Pakistan, India, Europe, and the United States). See generally Raymond B. Williams, Americans and Reli- gions in the Twenty-First Century: Asian Indian and Pakistani Religions in the United States, 558 A NNALS 178, 185 (1998) (discussing the migration of Muslims from South Asia to the United States from Pakistan, India and Bangladesh).

3.See E NCYCLOPEDIA BRITTANICA BOOK OF THE YEAR 684 (2002) ; John L. Esposito, The Future of Islam, 25 F LETCHER F. W ORLD AFF. 19, 19 (2001) (stating that Islam is the second-largest religion in the world); Lisa G.

Shah, Faith in Our Future?, 23 W HITTIER L. R EV. 183, 199 (2001) (claiming that Islam is the second-largest religion in the world behind Christianity).

* Kathleen A. Portuán Miller is a Professor of Legal Practice (Legal Research, Legal Writing and Analysis, and Alternative Dispute Resolution) at Texas Tech University School of Law. She has a B.A. in Spanish and Educa- tion from the University of Pittsburgh, a Masters of Library Science (Law Librarianship) from the University of Pittsburgh, and a J.D. from Ohio Northern University. In addition to teaching law, she lived in Morocco for four years. The author gives special thanks to Bob Hu (Head of Public Services), Salena Ayoub, Esq., Tom Rohrig (Government Documents Librarian), and Professor Dean Pawlowic (all from Texas Tech University) for their assistance. 66New York International Law Review[Vol. 16 No. 2 in the United States. 4 Islam is the most rapidly expanding religion in the world and the fastest- growing religion in the United States. 5 Islam has been called an “American phenomenon.” 6 Islamic law, or Qur’anic law, is called Shariah, and generally governs family law in Muslim countries. 7 The Holy Qur’an is the primary authority for Muslims. Basically, Islam is a way of life. 8 Other aspects of life are governed by the civil laws of the various Islamic states. For exam- ple, in the Magherib area—Morocco, Tunisia, Algeria, Libya, and Mauritania—French code law governs areas outside of family law. 9 In countries where British law formerly governed, such 4.See A MERICAN MUSLIM COUNCIL , at http://www.amconline.org; Zainab Chaudhry, The Myth of Misogyny: A Reanalysis of Women's Inheritance In Islamic Law, 61 A LB. L. R EV. 511, 517 (1997) (stating that the Muslim pop- ulation in the United States is estimated to be between five and eight million); Irshad Abdal-Haqq, Islamic Law:

An Overview of Its Origin and Elements, 7 J. I SLAMIC L. & C ULTURE 27, 29 (2002) (estimating the Muslim pop- ulation in the United States to be between five and eight million people).

5.See D ON C. L OCKE , INCREASING M ULTICULTURAL UNDERSTANDING : A C OMPREHENSIVE M ODEL 207 (1998) (stating that Islam is the fastest-growing religion in United States); see also Bernard K. Freamon, Slavery, Freedom, and the Doctrine of Consensus in Islamic Jurisprudence, 11 H ARV . H UM . RTS. J. 1, 64 n.2 (1998) (stating that Islam is the fastest-growing religion in the world and in America); Isha Khan, Islamic Human Rights: Islamic Law and International Human Rights Standards, 5 A PPEAL 74, 74 (1999) (claiming that Islam is the fastest-grow- ing religion in the world).

6.See L OCKE , supra note 5, at 206 (noting that Islam is rapidly increasing its popularity in the United States); see also Walter H. Capps, The Revenge of God: The Resurgence of Islam, Christianity, and Judaism in the Modern World, C HRISTIAN CENTURY , Sept. 21, 1994, at 868 (describing the increasing interest in traditional religion as more than just an American phenomenon). See generally Richard B. Turner, From Elijah Poole to Elijah Muhammad, Chief Minister of Islam; reprinted from “Islam in the African-American Experience,” A M. VISIONS , Oct. 20, 1997, at 20 (claiming that Islam in America has grown from a peripheral phenomenon to a large body of believers).

7.See Mark Cammack et al., Indonesia’s Marriage Law: Legislating Social Change in an Islamic Society—Indonesia's Marriage Law, 44 A M. J. C OMP . L. 45, 50–51 (claiming that the family law rules governing such things as mar- riage and divorce have a firm basis in the Qur’an); Hossein Esmaeili & Jeremy Gans, Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, 28 D ENV . J. I NT'L L. & P OL'Y 145, 146–47 (2000) (stating that subjects such as family law are defined by the Sharia—traditional Islamic law); Hossam E.

Fa d e l, Religious Values and Legal Dilemmas in Bioethics: The Islamic Viewpoint on New Assisted Reproductive Tech- nologies, 30 F ORDHAM URB. L.J. 147, 150–51 (2002) (describing the relationship between the Qur’an and aspects of family law).

8.See L OCKE , supra note 5, at 207. Previously, Shariah governed all aspects of the law. After colonization of the Islamic states by the French and British, Shariah and code law governed jointly. “Personal Law,” or limited Sha- riah is still in effect in India. See id. at 213; see also Chaudhry, supra note 4, at 518 (stating that Islam contains guidance for a way of life and every aspect of human activity is governed by Allah); Shefali Desai, Hearing Afghan Women’s Voices: Feminist Theory’s Re-Conceptualization of Women’s Human Rights, 16 A RIZ . J. I NT'L & C OMP .

L AW 805, 821 (1999) (asserting that Islam is more than a religion, it is a way of life).

9.See generally Marshall J. Breger & Shelby R. Quast, International Commercial Arbitration: A Case Study of the Areas Under Control of the Palestinian Authority, 32 C ASE W. R ES. J. I NT'L L. 185, 258 n.239 (2000) (discussing international commercial arbitration and the fact that Algeria and Lebanon were influenced by French law); Ann E. Mayer, Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition, 1 UCLA J. I SLAMIC & N EAR E.L. 183, 208 (2002) (asserting that the Moroccan Constitution was heavily influenced by French law); Special Report Law, M EED WEEKLY SPECIAL REPORT , Apr. 6, 2001, at 32 (stating that arbitration legislation in Algeria, Libya, Morocco and Syria are influenced by French law). Summer 2003] Comparing Islamic Law and Anglo-American Law67 as India, Pakistan, Egypt, and other African countries, law based on English statutory law gov- erns non-family law matters. 10 The works and deeds of the Prophet Mohammed of Islam are referred to as sunnah. 11 Hadith refers to the sayings of the Prophet Mohammed (PBUH). 12 Both the sunnah and hadith are (anecdotal) interpretations of the Holy Qur’an; they are likened to the Restatements, as they are scholarly interpretations of the law. 13 There are more than 5,000 hadith. 14 The Holy Qur’an consists of 114 chapters, called surahs, which are divided into verses, called ayahs, and it is roughly as long as the New Testament of the Holy Bible. 15 Muslims have respect for all the prophets, as well as for the Holy Bible, Judaism, and Christianity, and refer to Jews and Chris- tians as the “People of the Book.” 16 10.See Laurence Juma, Environmental Protection in Kenya: Will the Environmental Management and Co-ordination Act (1999) Make a Difference?, 9 S.C. E NVTL . L.J. 181, 183 (2002) (describing how Kenya follows British law); Nadeem Iqbal, Pakistan: Musharraf Urged to Repeal Death by Stoning Decree, I NTER PRESS SERVICE , May 7, 2002 (stating that Pakistani criminal courts follow British law); Peter B. Lord, Proposal Expands Claims for Dead, P ROVIDENCE JOURNAL -BULLETIN , Mar. 10, 2000, at 1B (explaining that Egypt follows British laws).

11.See L OCKE , supra note 5, at 216 (discussing the teachings of the Prophet Mohammed of Islam); see also Gohar Bilal, Islamic Finance: Alternatives to the Western Model, 23 F LETCHER F. W ORLD AFF. 145, 146 (describing the Sunnah as the actions of the prophet Mohammed); Urfan Khaliq, Beyond the Veil?: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah, 2 B UFF . J. I NT'L L. 1, 9 (1995) (explaining that the Sunnah are the sayings and traditions of Mohammed). 12.See L OCKE , supra note 5, at 207 (stating that when the Prophet Mohammed’s name is mentioned, the words “May Peace Be Upon Him (PBUH)” follow his name); Richard E. Vaughan, Defining Terms in the Intellectual Property Protection Debate: Are the North and South Arguing Past Each Other When We Say “Property”? A Lockean, Confucian, and Islamic Comparison, 2 ILSA J. I NT'L & C OMP L. 307, 351 (1996) (defining hadiths as the words, sayings, and actions of Mohammed).

13.See M. Cherif Bassiouni & Gamal M. Badr, The Shari’ah: Sources, Interpretation, and Rule-Making, 1 UCLA J.

I SLAMIC & N EAR E.L. 135, 138–40 (2002) (stating that the hadith, which are part of the sunnah, interpret the Qur’an); see also Abdal-Haqq, supra note 4, at 54 (discussing interpretation of the Qur’an and how outside the Qur’an itself, the primary source of interpretation is the sunnah as in the hadith); Vida Barnett, Religion: The His- tory and Belief of Islam, G UARDIAN (London), Jan. 13, 1992, Education at 6 (asserting that the teachings of the Qur’an are interpreted through the sunnah and hadith of Mohammed).

14.See Abdal-Haqq, supra note 4, at 48 (asserting that one scholar had determined that there are 7,397 authentic hadiths and another scholar’s work contains 12,000 hadiths); see also Ali Khan, Islam as Intellectual Property “My Lord! Increase me in Knowledge,” 31 C UMB . L. R EV. 631, 656–57 (2000) (stating that the most respected scholar of hadith, Bukhari, selected about 7,000 hadith whose authenticity was irrefutable); Justice Stressed in Verses of the Quran, N EW STRAITS TIMES (Malaysia), Apr. 17, 1996, at 12 (claiming that after being studied and sifted through, there were about 7,000 genuine hadiths).

15.See Raj Bhala, Globalization and Sovereignty: Theological Categories for Special and Differential Treatment, 50 K AN.

L. R EV. 635, 680 (2002) (stating that the Qur’an is about 80% of the length of the New Testament and is divided into 114 chapters (surahs) and that each surah is divided into verses (iyahs)); see also Abdal-Haqq, supra note 4, at 45 (asserting the Qur’an is one book comprised of 114 surahs and 6,666 iyahs).

16.See L OCKE , supra note 5, at 207 (stating that when the British occupied the Islamic states, they Anglicized the spelling of the Holy Qur’an as Koran); see also Peter H. Schuck, The Perceived Values of Diversity, Then and Now, 22 C ARDOZO L. R EV. 1915, 1920 (2001) (explaining how Muslims consider Jews, Muslims, and Christians as “people of the Book”). See generally Jorgen S. Nielsen, Contemporary Discussions on Religious Minorities in Islam, 2002 BYU L. R EV. 353, 362–66 (2002) (discussing relations between Muslims and non-Muslims and the gen- eral principal to deal in a kindly manner with those who reciprocate such treatment). 68New York International Law Review[Vol. 16 No. 2 In addition to containing the basic beliefs of Islam, the Holy Qur’an provides Muslims with specific guidelines for daily living. 17 It forbids the eating of pork, the drinking of liquor, and gambling, and provides guidelines for marriage and divorce. 18 The Holy Qur’an spells out the Five Pillars of Faith, the essential religious practices that Muslims must fulfill:

1. The first pillar is the confession of faith, or shaheda: that there is no god, but God, and that Mohammed is the messenger of God. 19 2. The second pillar involves prayer. Muslims perform the salat (prayers) at five prescribed times each day—fajr (dawn), zuhr (midday), asr (after- noon), maghrib (sunset), and isha (evening). 20 3. The third pillar focuses on care for the poor and needy. Muslims must give money (zakat) to the poor annually. Two-and-a-half percent of one’s savings is recommended, or if camels, sheep, cattle, or goats are involved, the owner must give 2.5% of his livestock. 21 4. The fourth pillar requires fasting during the holy month of Ramadan, the ninth month in the Islamic calendar. 22 Fasting includes refraining from all eating, drinking, smoking and sexual intercourse from one half hour before sunrise until one half hour after sunset. Pregnant women, children under the age of seven, travelers, and those who are ill are excused from the obligation.

5. The fifth pillar is the haj, or pilgrimage to Mecca. All Muslims, who are able and can afford it, are expected to make the pilgrimage at least once in their lifetimes. The pilgrimage, lasting up to seven days, takes place during the Feast of Sacrifice and commemorates Abraham’s offering of his son to God. 23 17.See Scott L. Goodroad, The Challenge of Free Speech: Asian Values v. Unfettered Free Speech, An Analysis of Sin- gapore and Malaysia in the New Global Order, 9 I ND . INT'L & C OMP . L. R EV. 259, 263 (1998) (stating that through the Qur’an, Islam sets out guidelines for living); Paul Gosling, Mortgage Made for the Muslim Buyer; Paul Gosling Finds Islamic Financial Institutions Offer an Alternative to Bank Borrowing, I NDEPENDENT (London), Oct. 14, 1990, Business on Sunday Money Page at 19 (describing the Qur’an as a practical guide to daily living); S.B., What Is Islam?, E SSENCE , Nov. 1995, at 108 (asserting that the Qur’an outlines a code for living).

18.See Kenneth L. Woodward, In the Beginning, There Were the Holy Books, N EWSWEEK , Feb. 11, 2002, Religion at 50 (referring to Qur’an-based religious laws that forbid drinking and gambling); Kenneth L. Woodward & Will- liam E. Schmidt, Islam on the March, N EWSWEEK , Dec. 5, 1977, Religion at 72 (stating that the Qur’an estab- lishes norms governing marriage and divorce). See generally Victoria Moore, Holy Wine; Drink—Victoria Moore on What the Koran Says About Boozing, N EW STATESMAN , Oct. 2001 (discussing various laws from the Qur’an forbidding alcohol, gambling and pork).

19.See L OCKE , supra note 5, at 217–218; Hamid M. Khan, Nothing is Written: Fundamentalism, Revivalism, Reform- ism, and the Fate of Islamic Law, 24 M ICH . J. I NT'L L. 273, 281 (2002) (quoting the First Pillar of Islam as:

“There is no god, but God and Muhammad is His Prophet”); Twibell, supra note 2, at 54 (stating that the First Pillar of Islam is that one must believe there is one God and Mohammed is his prophet).

20.See L OCKE , supra note 5, at 217.

21.Id.

22.Id. at 218.

23.Id. Summer 2003] Comparing Islamic Law and Anglo-American Law69 The Holy Day for Muslims is Friday. 24 There are two celebrations or Eid: Feast of Sacrifice (Eid al Aztha) (around the time of Easter and Passover) and Feast of Fast-Breaking (Eid al Fitr), after Ramadan. 25 The fairness of Islamic law under the Holy Qur’an, like Anglo-American law, has been eroded by cultural factors and tradition, as this article will attempt to point out. Anglo-American Law Anglo-American law is based on numerous sources, from the United States Constitution to the pronouncement of municipal agencies. Both the federal government and the states have lawmaking powers, and in each case, the three branches—the Legislative, which enacts the laws, the Executive, which enforces the laws, and the Judiciary, which interprets the laws— share in this responsibility. 26 Statutory law consists of laws enacted by a Legislature, both at the state and federal levels. 27 Common law, created by judges, is that part of the legal system of the United States that consists in its entirety of a body of past judicial decisions, called cases. 28 24.See Rahman v. Michigan Department of Corrections, 65 F.3d 489, 491 (6th Cir. 1995) (citing evidence pre- sented by an Islamic cleric that Muslim men are excused from Friday services in cases of sickness or employment- related duties); Samina Quddos, Accommodating Religion in Public Schools: Must, May or Never?, 6 J. I SLAMIC L.

& C ULTURE 67, 69 (2001) (noting that when Muslim men reach adolescence, they are required to attend Friday congregational prayer); Raj Bhala, supra note 15, at 678–79 (describing the similarities between the religious lec- ture delivered at Islamic Friday congregational prayers and the homily preached at Sunday Roman Catholic Masses).

25.See L OCKE , supra note 5, at 218 (highlighting two significant Islamic holidays); see also Jennifer Caldwell, A Day of Joy for Muslims; But World Climate Dampens Holy Day Services, T ORONTO SUN, Dec. 7, 2001, at 12 (stating that the El al Fitr holiday is considered the largest in the Muslim religion); Larry Kaplow, War on Terrorism:

Afghans Savor a Meager Feast; New Freedoms Enrich Holiday Despite Poverty, A TLANTA J. & C ONST ., Dec. 17, 2001, at 10A (describing El al Fitr as a time to don new garments and share food and treats with relatives and friends).

26.See Griffin Terry, A Critical Analysis of the Formulation and Content of the 1993 Amendments to the Federal Rules of Civil Procedure, 63 U. C IN. L. R EV. 869, 884–85 (1995) (maintaining that although the United States Constitu- tion does not explicitly provide a role to the Executive Branch in the civil rulemaking process, recent presidential administrations have taken a more proactive role in commenting on various proposals). See generally Michael Stoke Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 G EO. L.J. 217, 219 (1994) (positing that the weakest branch of the federal government is the judiciary due to its lack of power over the “sword or the purse” and its inability to enforce its own judgments).

27.See Geroge Nils Herlitz, The Meaning of the Term “Prima Facie,” 55 L A. L. R EV. 391, 403 (1994) (referring to the fact that the expanded utilization of statutes in common law jurisdictions has been, in comparison to Louisiana’s rich civil law history, a fairly recent phenomenon). See generally William R. Casto, The Erie Doctrine and Struc- ture of Constitutional Revolutions, 62 T UL. L. R EV. 907, 933 (1988) (differentiating between statutory law, which had historically been viewed “procedurally in terms of the command of the sovereign” and the common law which was viewed substantively as a mixture of both “divine command and human reason”).

28.See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretations of Statutes and the Constitution, 37 C ASE W. R ES. L. R EV. 179, 186 (1987) (positing that the common law is comprised of amorphous concepts that can be expressed interchangeably by a variety of different verbal forms); see also F. Giba-Matthews, O.F.M., Cus- tomary International Law Acts as Federal Common Law in U.S. Courts, 20 F ORDHAM INT’L L.J. 1839, 1846–47 (1997) (defining federal common law as created by Article III courts to ensure compliance with federal laws, the protection of federal interests, and federal statutory interpretation in a manner consistent with the legislative intent of Congress). See generally Pau l Lund, The Decline of Federal Common Law, 76 B.U. L. R EV. 895, 915 (1996) (stating that Erie was a seminal case in promulgating a consistent federal lawmaking power). 70New York International Law Review[Vol. 16 No. 2 American common law has been shaped by English common law, which is unique to Anglo- American law; most other countries have a civil law system, based on statutory law. 29 There are also rules and regulations that are written by the agencies and fall under the Executive branch. 30 Some of American constitutional law, particularly the Fourth Amendment, is based on Islamic Law that Thomas Jefferson derived from the Ottoman Empire. 31 Thomas Jefferson’s library contained at least one copy of the Holy Qur’an, and was rich with books about ancient civilizations, including Islamic ones. 32 Moreover, the Charter of Madinah (7th century A.D., Saudi Arabia) contained provisions similar to the Preamble to the American Constitution, including a partial Bill of Rights that protected, among other things, the right to freedom of religion and the right not to be found guilty because of the deeds of an ally. 33 A major right 29.See George P. Fletcher, Three Nearly Sacred Books in Western Law, 54 A RK. L. R EV. 1, 13 (2001) (maintaining that the origin of the civil law system stems from the legal commentary on Roman law by university professors and students at the University of Bologna in the 13th century). See generally Robert B. von Mehren, An International Arbitrator’s Point of View, 10 A M. REV. INT’L ARB. 203, 203–04 (1999) (contrasting the roles and duties of com- mon law judges and attorneys with their civil law counterparts).

30.See Alexander Dill, Scope of Rule Making After Chadha: A Case For the Delegation Doctrine?, 33 E MORY L.J. 953, 958–59 (1984) (discussing the belief that the former long-standing presumption of the separation of powers doctrine, that the legislature was prohibited from allocating its lawmaking power, impeded the development of administrative agency regulations). See generally Lloyd N. Cutler, Presidential Intervention in Administrative Rule- making: The Case for Presidential Intervention in Regulatory Rulemaking by the Executive Branch, 56 T UL. L. R EV.

830, 838 (1982) (suggesting that the President exerts a great deal of indirect influence via agency administrators who are delegated rulemaking powers by the United States Congress); Claudia Tobler, The Standard of Judicial Review of Administrative Agencies in the United States and EU: Accountability and Reasonable Agency Action, 22 B.C. I NT’L & C OMP . L. R EV. 213, 215 (1999) (maintaining that the notion of executive branch rulemaking power developed from the idea that the intricacies and technicalities of statutes are best left administered by experts who will comply with the spirit of the legislative intent of the provision).

31.See Azziza al-Hibri, Islamic and American Constitutional Law: Borrowing Possibilities, or A History of Borrowing?, U. P A. J. C ONST . L. 492, 493 (1999) (stating that many of the American founding fathers derived their ideals on governance from the various legal systems of antiquity, including those of Islamic civilizations); see also Michel Rosenfeld, Human Rights, Nationalism, and Multiculturalism in Rhetoric, Ethics and Politics: A Pluralist Critique, 21 C ARDOZO L. R EV. 1225, 1235 (2000) (hypothesizing that the schematic of religious tolerance granted under the Ottoman system is in some ways, superior to the rights provided in the First Amendment of the United States Constitution); Parvez Ahmed, Muslim Contributions Paved Way For the West, S UN SENTINEL (Ft. Lauder- dale), Feb. 14, 2003, at 23A (noting the influences of the Ottoman Empire on early American political dis- course).

32.See Azziza al-Hibri, supra note 31, at 493 (noting the breadth of literature contained in the Jeffersonian library at Monticello). But see Deborah Horan, Muslims Serve History to Guests for Ramadan, C HI. TRIB ., Nov. 12, 2002, at 1 (citing that Jefferson’s copy of the Qur’an was an edition translated by George Sale).

33.See Azziza al-Hibri, supra note 31, at 492 (highlighting the comparable rights and freedoms granted under both the Charter of Madinah and the United States Constitution); see also Farid Esack, Muslims Engaging the Other and the Humanum, 14 E MORY INT’L L. R EV. 529, 557 (2000) (noting the manifestation of religious tolerance provided under the Charter of Madinah via its unambiguous mandate of a “single community with diverse reli- gious expressions”); Kassim Ahmad, Use Ijtihad to Break Out of Hide Bound Traditionalism, N EW STRAITS TIMES (Malaysia), Feb. 9, 2000, at 10 (referring to claims that the Charter of Madinah may be the world’s first written constitution, preceding the English Magna Carta by almost five centuries). Summer 2003] Comparing Islamic Law and Anglo-American Law71 mandated by the Holy Qur’an was the right to privacy. The Holy Qur’an also protects some of the rights mentioned in the Fourth Amendment. 34 This article will attempt to compare and contrast Islamic and Anglo-American laws regarding women. The Beginning—Anglo-American Law In Genesis, Chapter 3, of the Holy Bible, Eve was deceived by Satan and convinced Adam to eat the apple. Thus, Adam and Eve lost Paradise and the concept of original sin developed. 35 In Christianity, a child is baptized to cleanse the infant from his or her original sin. 36 In the Western world, women are sometimes referred to as the weaker sex, and the concept of original sin has even been translated into sex discrimination. 37 However, this negative connotation was replaced with the Christian concept of the Virgin Mary as the mother of Jesus (God). 38 If woman introduced evil into the world, she also gave birth to its savior. 39 34.See Azziza al-Hibri, supra note 31, at 493 (reasoning that the right to privacy in the Qur’an influenced the con- struction of rights embodied in the United States Constitution). See generally Tr u d y B u s h , At the Mosque, T HE CHRISTIAN CENTURY , Sept. 26, 2001, at 8 (quoting an Islamic community leader as stating that the government and laws of the United States are attractive to immigrants of the Muslim faith due to the striking similarities between the freedoms delineated in the Qur’an and the rights protected under the federal constitution); Joelle Entelis, International Human Rights: Islam’s Friend or Foe? Algeria as an Example of the Compatibility of Interna- tional Human Rights Regarding Women’s Equality and Islamic Law, 20 F ORDHAM INT’L L.J. 1251, 1296 (1997) (noting the strong accord between the rights established in the Qur’an and the International Bill of Human Rights).

35.See Anthony E. Cook, The Death of God in American Pragmatism and Realism: Resurrecting the Value of Love in Contemporary Jurisprudence, 82 G EO. L.J. 1431, 1481 (1994) (citing classical theology’s view that the “original sin” committed by Adam and Eve marked the beginning of Satan’s entanglement in human relations and began a chain of sin disseminating down through subsequent generations); see also Timothy Patrick Brady, “But Most of it Belongs to Those Yet to be Born”: The Public Doctrine, NEPA, and the Stewardship Ethic, B.C. E NVTL . AFF. L. R EV.

621, 624 (1990) (referring to the Garden of Eden as the embodiment of perfection, lost due to the “original sin” committed by the alleged founders of mankind). See generally Paula Abrams, The Tradition of Reproduction, 37 A RIZ . L. R EV. 453, 453 (1995) (noting the tradition of woman deriving from man is based on the biblical para- ble of Eve being created from Adam’s rib).

36.See Lynn Arave, Christian Movement Centers on Baptism, D ESERT NEWS (Salt Lake City), Feb. 28, 1998, at E09 (noting that although infant baptisms were the norm in the early Christian communities, adults looking to become initiated into the church were required to undergo three years of religious instruction). See generally Steven D. Smith, The “Secular,” the “Religious,” and the “Moral”: What Are We Talking About?, 36 W AKE FOREST L. R EV. 487, 495 (2001) (citing the belief that the power of baptism to cleanse the soul of original sin may have positive effects on fostering moral behavior).

37.See Hammudah Abdalati, I SLAM IN FOCUS , at 31–32 (1996) (noting that sex discrimination is “alien to the spirit of Islam”); see also Abdul Rahman bin Abdul Karim Al-Sheeha, Women in the Shade of Islam, at 8 (Mohammed Said Dabas trans., 1997) (maintaining that the Islamic religion does not attribute “original sin” to women). See generally Derek W. St. Pierre, The Transition from Poverty to People: The Road to the Recognition of Rights for Non- Human Animals, 9 H ASTINGS WOMEN ’S L.J. 255, 267 (1998) (positing that many gender stereotypes stemmed from the biological differences between men and women).

38.See Matthew 1:2; Luke 1:26-56, 2:1-40, 3:23-38 (noting that when the angel first visited Mary to deliver her the message that she was chosen to bear the Son of Man, he expressed God’s approval of her). The Holy Qur’an devotes an entire chapter to the Virgin Mary (Maryam), who is highly respected as the mother of the Prophet Jesus. See the Holy Qur’an (Surah 19) (describing Jesus Christ as a holy prophet and servant of God).

39.See Matthew at 1,2; Luke at 1:26-56 (noting that the child born to Mary would be the Messiah, the one who would “save his people from their sins”). 72New York International Law Review[Vol. 16 No. 2 Later, women were considered property. In Medieval England, the common custom existed of giving payment to a manorial lord by a young woman’s family to secure “his permis- sion before she might marry.” 40 This custom persisted in Colonial America.

Until the late 19th century in the U.S., when a woman married, her legal identity merged with that of her husband, and she could no longer own, control, or manage any property inde- pendently. 41 Any real property that a woman owned and brought into a marriage, or acquired thereafter, fell under the control of her husband. 42 She had no right to devise this land, and could only write a will bequeathing personalty if her husband gave his approval, because any personal property came under the absolute ownership of the husband to “dispose of as he saw fit.” 43 “Underlying a woman’s status was a concept of a woman as a man’s ‘property’—a concept applicable not only to the married woman, but also to the single woman, as well, who was sub- ject to her father’s control preceding her marriage.” 44 Reforms finally began to take place during the middle of the 19th century, with the enact- ment of the Married Women’s Property Acts, the first of which was adopted in Mississippi in 40.See Chaudhry, supra note 4, at 511 (commenting on the medieval custom of attaining marriage by appeasing manorial lords); see also Jeremy D. Weinstein, Adultery, Law, and the State: A History, 38 H ASTINGS L.J. 195, 203 (Nov. 1986) (noting that gifts were also made to the bride’s father to secure his consent to the marriage); John McLaughlin, Medieval Child Marriage: Abuse of Wardship?, Conference on Medieval Studies at Plymouth State College, Plymouth, NH, Apr. 1997 (discussing the prevalence of child marriages whereby young girls were treated as bargaining chips for political and inheritance purposes), available at .

41.See Chaudhry, supra note 4, at 511 (comparing American and Muslim historical attitudes towards the equality of women); see also Abrams, supra note 35, at 482 (noting that the subordination of women through marriage was influenced by ecclesiastical codes or cannon law principles); Sally F. Goldfarb, The Supreme Court, The Violence Against Women Act, and the Use and Abuse of Federalism, 71 F ORDHAM L. R EV. 57, 98 (Oct. 2002) (explaining that the ancient common-law doctrines of interspousal tort immunity and marital rape exemption have roots in the legal identity merger principle).

42.See The Honorable K. Edward Greene, A Spouse’s Right to Control Assets During Marriage: Is North Carolina Liv- ing in the Middle Ages?, 18 C AMPBELL L. R EV. 203, 204 (Spring 1996) (stating that the husband could appropri- ate all the rents and profits derived from use of the property); Calvin G. C. Pang, Slow-Baked, Flash-Fried, Not to be Devoured: Development of the Partnership Model of Property Division in Hawaii and Beyond, 20 H AW. L. R EV.

1, 22 (Summer/Fall 1998) (discussing Mutch v. Holau, which held that the husband was even able to void his wife’s premarital transfer of real property to her brother).

43.See Carole Shammas, English Inheritance Law and Its Transfer to the Colonies, 31 A M. J. L EGAL HIST. 145, 159 (1987) (commenting on the lack of equity courts to enforce marriage settlements that enabled women to exert more control over their property); see also Marlene Stein Wortman, ed., 1 W OMEN IN AMERICAN LAW 14 (1985) (explaining that the United States Supreme Court in Reynolds v. United States reinforced laws that afforded a husband’s power over his wife’s real and personal property); Kathleen M. O'Connor, Marital Property Reform in Massachusetts: A Choice for the New Millennium, 34 N EW ENG. L. R EV. 261, 272–73 (Fall 1999) (not- ing that the current elective share system in Massachusetts has roots in the common law property system pertain- ing to the husband’s ownership of his wife’s property).

44.See Chaudhry, supra note 4, at 511; see also Kelly C. Connerton, The Resurgence of the Marital Rape Exemption:

The Victimization of Teens by Their Statutory Rapists, 61 A LB. L. R EV. 237, 246 (1997) (informing that rape of a husband’s wife was considered theft of the husband’s property); Trial and Tribulation: The Story of United States v.

Anthony, 48 B UFF . L. R EV. 981, 991 (Fall 2000) (noting that while 19th century commentators referred to hus- bands as guardians who “protect and maintain” their wives, in actuality, common law customs persisted). Summer 2003] Comparing Islamic Law and Anglo-American Law73 1839. 45 The Married Women’s Property Acts granted married women control and manage- ment of the property that they brought into the marriage. 46 However, some states had laws barring women from signing contracts or transacting busi- ness on their own until the 1900s. For example, in 1911, Texas laws prohibited married women from contracting or doing business on their own; these laws were not abrogated until 1963. 47 The Beginning—Islamic Law In Islam, Adam and Eve were both tempted and they both sinned. Allah (God) addressed them jointly. Adam and Eve fell and were expelled from the Garden of Eden, and were brought down to earth to live, die, and be judged at the Last Judgment. 48 Man, according to the Holy Qur’an, is born into a natural state of purity, or fitrah, and must submit to the will and law of God. 49 The concept of original sin does not exist and woman is not the source of original sin that caused Adam to be dismissed from heaven (Jinna). 50 This idea is significant since it liber- ates Eve from the curse that has followed her and her sex throughout the ages, and acquits her of the charge that she alone bears all or most of the responsibility for the fall. Furthermore, it declares, in no uncertain terms, that the moral inferiority of women is unfounded and any dou- 45.See Harry Krause, Family Law in a Nutshell 98–99 (1986) (discussing the importance of the Married Women’s Property Acts); see also James R. Stoner, Jr., Is Tradition Activist? The Common Law of the Family in the Liberal Constitutionalist World, 73 U. C OLO . L. R EV. 1291, 1296–97 (Fall 2002) (describing the Married Women’s Property Acts as an effort by the American republic to change from common law ideals to republican entrepre- neurial ideas); James W. Paulsen, Community Property and the Early American Women’s Rights Movement: The Texas Connection, 32 I DAHO L. R EV. 641, 644 (1996) (noting that the act may have influenced Texas’s commu- nity property provisions in 1845).

46.See generally Krause, supra note 45.

47. In 1911, Te x a s G e n e r a l L a w s, ch. 52, p. 92, barred married women from contracting or transacting business on their own. This law was later amended in 1937 as the General and Special Laws of Texas, ch. 499, § 2, p. 1343, but it still prohibited women from entering into contracts on their own. Finally in 1963, Texas General and Spe- cial Laws, p. 1188, ch. 472, § 6, gave Texas married women the capacity to contract.

48.See Abdalati, supra note 37, at 32 (describing the beginning of the Islamic Law); see also the Holy Qur’an (Ta H a) 20:120-121 (explaining how Adam and Eve “disobey[ed] God, and allowed them to be seduced [by Satan] . . .

[b]ut God chose them (for their Grace): He turned to them and gave them Guidance”); America Friends Service Committee, Introduction to Islam: No More Victims—Islam Q&A (explaining that Muslims believe that they will be held accountable for their individual actions at the Day of Judgment), available at http://www.afsc.org/ nomore/islam.htm (last modified Mar. 19, 2003).

49.See Abdalati, supra note 37, at 32 (describing the man’s state at birth); see also the Holy Qur’an (Al Rum) 30:30, note 3541 (Passage 123-24 states “but if, as is sure, there comes to you guidance from Me, whosoever follows My Guidance, will not lose his way, nor fall into misery. . . . But whosoever turns away from My Message, verily for him is a life narrowed drawn, and We shall raise him up blind on the Day of Judgment”). For information detail- ing the submission process, please see Submission.org, available at (last updated Mar. 17, 2003).

50.See Abdalati, supra note 37, at 31–32 (discussing the concept of the original sin); see also Sherif Abdel Azim, Ph.D., Women in Islam Versus Women in the Judeo-Christian Tradition: The Myth and The Reality, Pa r t 2 — Ev e’s Legacy (explaining that unlike the Judeo-Christian image of “Eve the temptress,” the Qur’an does not view the woman as a deceiver by nature), available at http://islamicity.com/mosque/w_islam/evel.htm (last visited Mar.

19, 2003). See generally Abdus Sattar Ghauri, The Concept of Original Sin . . . Understanding Islam (distinguishing ‘original’ sin from Islamic “acquired” sin, whereby the latter holds that individuals perform unlawful prohibited actions with guilty intention), available at http://www.understandingislam.com/related/text.asp?type=arti- cle&aid=178 (last visited Nov. 13, 2002). 74New York International Law Review[Vol. 16 No. 2 ble standard is totally unjustifiable. 51 For Muslim women, the socialization process (being raised in a Muslim atmosphere) plays a decisive role in the formation of human development and the development of moral character.

52 Later, in the 7th century A.D., the Holy Qur’an was revealed and gave women: (1) legal status as persons, (2) the same religious duties as men, (3) the right to accept or deny marriage or to initiate divorce, and (4) the right to inherit and manage property. 53 Note that Muslim women received their rights in the 7th century A.D., while American women received most of their rights in the 19th and 20th centuries. Marriage/Requirements—Anglo-American Law The United States Supreme Court has repeatedly held that marriage is a fundamental right protected by the due process clause. 54 Marriage is viewed as both a vital personal right and a basic civil right. 55 U.S. courts have held that although the right to marry is not stated specifi- cally in the Constitution, the term “liberty,” which is protected by the due process clause of the 51.See Abdalati, supra note 37, at 31–32 (explaining the shortcomings of the myth of a female inferiority); see also Leila P. Sayeh & Adriaen M. Morse, Jr., Islam and the Treatment of Women: An Incomplete Understanding of Grad- ualism, T EX. INT’L L.J. 311, 318–19 (Spring 1995) (mentioning that the Qur’an views men and women simi- larly as dignified creatures that must submit to Allah’s will); Riffat Hassan, “Members, One of Another: Gender Equality and Justice in Islam,” The Religious Consultation on Population, Reproductive Health & Ethics (assert- ing that Muslim women have been viewed as “powerless” and “voiceless” based on pre-Qur’anic and non- Qur’anic assumptions, not the Qur’anic view that endorses human rights and equality for women), available at http://www.religiousconsultation.org/hassan.htm (last updated Mar. 19, 2003).

52.See Abdalati, supra note 37, at 32 (noting the importance of the early childhood for Islamic women); see also Hammuda Abdul-Ati, Ph.D., Islam in Focus, The Status of Woman in Islam (suggesting that women in demo- cratic nations struggled for centuries to gain educational and vocational opportunities while their Muslim coun- terparts have not endured such sacrifices and painful struggles), available at http://www.muslimway.org/Women/ womaninislam10.htm (last visited Mar. 19, 2003). For an analysis on the religious, moral and social obligations Muslim women enjoy in their respective capacities as mother, daughter and wife, please see Dr. Muhammad Hamidullah, The Muslim Woman (a lightly edited excerpt from Ch. XI “Introduction to Islam”), available at http://muslim-canada.org/ch11hamid.htm (last visited Mar. 19, 2003).

53. Interview with Elizabeth Fernea, Texas Tech University, Lubbock, Tex. (Apr. 12, 2002); see also Interview with Deryl Davis, The Role of Women in Islam, R ELIGION AND ETHICS 4 (May 10, 1992).

54.See Loving v. Virginia, 388 U.S. 1 (1967) (holding that the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men); see also Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that the due process clause does not confer a fundamental right on homosexual acts of consensual sodomy as opposed to fundamental rights such as marriage and procreation); Planned Parent- hood v. Casey, 505 U.S. 833 (1992) (noting that marriage and family relationships entail intimate and personal choices central to due process protected liberty).

55.See Loving, 388 U.S. at 5 (proclaiming that the freedom to marry or not marry interracially cannot be infringed by state legislation); see also Alison Nicole De Gregorio, Single and Bankrupt: What Right Does a Debtor Have to Marry? 15 B ANKR . D EV. J. 427, 428 (Spring 1999) (discussing how the fundamental right of marriage has been balanced against chapter 13 bankruptcy policies); Heather Hodges, Dean v. The District of Columbia: Goin’ to the Chapel and We’re Gonna Get Married, 5 A M. U. J. G ENDER & L. 93, 117 (Fall 1996) (reasoning that same-sex marriages have not found endorsement because the fundamental rights of marriage and procreation have been intertwined for the purpose of creating offspring). Summer 2003] Comparing Islamic Law and Anglo-American Law75 Fourteenth Amendment, includes freedoms other than those expressed in the Constitution. 56 Marriage is held in high regard as “the most important relation in life.” 57 Case law, including Zablocki v. Redhail, recognized that marriage is part of the fundamental right of privacy con- tained in the due process clause of the Fourteenth Amendment. 58 Although the right to marry is held as a fundamental right, statutes regulating marriage may still be imposed, but will be subjected to the strictest scrutiny under review. 59 The statute in question must not directly or substantially interfere with the right to marry. If, however, there is direct or substantial interference with this basic right, the statute must be supported by compelling state interests and must be closely tailored to effectuate those interests.

60 State regulations concerning marriage differentiate between the two sexes, but are admin- istered uniformly to both males and females, except as to set age requirements. 61 56.See Zablocki v. Redhail, 434 U.S. 374, 392 (1978) (invalidating a Wisconsin statute that infringed on an indi- vidual’s freedom to marry); see also Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (explaining that ‘liberty’ encompasses many individual rights despite the fact that “this Court has not attempted to define with exactness the liberty thus guaranteed”); Susan M. Faust, Baby Girl or Baby Boy? Now You Can Choose: A Look at New Biol- ogy and No Law, 10 A LB. L.J. S CI. & T ECH . 281, 297 (2000) (stating that liberty interests may be “deeply rooted in this Nation's history and tradition” or “implicit in the concept of ordered liberty”).

57.See Maynard v. Hill, 125 U.S. 374, 392 (1978).

58.See Zablocki, 434 U.S. at 384 (noting that cases subsequent to Griswold and Loving have consistently treated the decision to marry as a protected right of privacy); see also Griswold v. Connecticut, 381 U.S 479, 485 (1965) (asserting that allowing “the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives” is “repulsive to the notions of privacy surrounding the marriage relationship”); Montgomery v.

Carr, 101 F.3d 1117 (6th Cir. 1996), citing Loving v. Virginia, 388 U.S. 12 (1967) (explaining that marriage is a fundamental right of privacy in addition to a First Amendment associational right).

59.See Zablocki, 434 U.S. at 388 (stating that “[w]hen a statutory classification significantly interferes with the exer- cise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests”); see also Baehr v. Lewin, 74 Haw. 530 (Sup. Ct. 1993) (explaining that Hawaii’s § 572-1 statute constituted sex discrimination under strict scrutiny review by limiting marriage licenses to male-female couples); Kevin G. Clarkson, David Orgon Coolidge & William C. Duncan, The Alaska Marriage Amendment: The People’s Choice on the Last Frontier, 16 A LASKA L. R EV. 213, 216–18 (Dec.

1999) (discussing the passage of the Alaska Marriage Amendment under strict scrutiny review).

60.See Zablocki, 434 U.S. at 388 (stating that if statutory classification significantly interferes with the exercise of the fundamental right, it would not be upheld unless there are important state interests and the statute is closely tailored to effectuate those interests); see also Carey v. Population Svcs., 431 U.S. 678, 686 (1977) (stating that sufficiently compelling state interest may validate even burdensome regulation); San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 16–17 (1973) (finding that the statutes interfering with fundamental constitutional rights are subject to strict scrutiny analysis; thus a state must carry a burden of justification that it’s proposed stat- ute is narrowly tailored to serve legitimate objectives).

61.See Krause, supra note 45, at 46–47 (stating that many states enacted regulations that are directed at regulating both the traditional and nontraditional forms of marriage). See generally Cynthia Grant Bowman, A Feminist Pro- posal to Bring Back Common Law Marriage, 75 O R. L. R EV. 709, 718 (1996) (citing regulations that deal with common law marriage); Ellen Kandoian, Cohabitation, Common Law Marriage, and the Possibility of a Shared Moral Life, 75 G EO. L.J. 1829, 1848 (1987) (discussing how regulations affected the status of a common law marriage). 76New York International Law Review[Vol. 16 No. 2 There are two types of marriage: formal and informal. 62 A formal marriage consists of a ceremonial marriage or licensed marriage. 63 An informal marriage is considered a marriage at common law. 64 A common law marriage is generally a marriage where there is an agreement to the marital relationship and a public acknowledgment of the marital relationship. Approxi- mately 11 states recognize common law marriages. 65 Age requirements concerning marriage vary among the states. Aside from Mississippi and Nebraska, the required age to marry without parental consent is 18 years old. 66 Mississippi law states that a male of 17 years of age and a female of 15 years of age, may marry, 67 while Nebraska’s required age of consent to marry is 19. 68 Age requirements requiring parental con- sent are somewhat different, and range from 12 years (in Kansas and Massachusetts) to 18 years 62.See Krause, supra note 45, at 45–48 (noting that mandatory marriage formalities displaced common law mar- riage in an effort to strengthen marriage); see also The Right to Join a Family: Traditional Marriage and the Alterna- tives, 93 H ARV . L. R EV. 1242, 1290–91 (1980) (analyzing and comparing the formal and informal marriages).

See generally Kandoian, supra note 61, at 1848 (discussing how introduction of public formalities affected the sta- tus of informal marriages).

63.See Krause, supra note 45, at 45–48 (discussing the developments and history of formal marriage); see also Adri- enne K. Wilson, Same-Sex Marriage: A Review, 17 W M. M ITCHELL L. R EV. 539, 541–42 (1991) (stating that in the 18th century the marriage license had to be obtained in order to achieve valid marital status). See generally Lona N. Laymon, Valid-Where-Consummated: The Intersection of Customary Law Marriages and Formal Adjudica- tion, 10 S. C AL. INTERDISC . L.J. 353, 362 (2001) (noting that for “evidentiary” purposes, the courts usually give more weight to documents like marriage licenses than the narration of the ceremonial process).

64.See Krause, supra note 45, at 45–48 (equating informal marriage to a common law marriage); see also Bowman, supra note 61, at 718 (noting that Common Law marriage has its origins in the informal forms of marriage); The Right to Join a Family, supra note 62, at 1291 (discussing in detail the notion of informal marriage, and noting that the institution of common law marriage is founded on the idea that relationship is the essence of marriage).

65.See Legal Information Institute (providing a detailed table regarding states’ recognition of common law mar- riage), available at http://www.law.cornell.edu/topics/Table_Marriage.htm (last visited Jan. 23, 2002); see also Bowman, supra note 61, at 715 (noting that common law marriage is recognized by 11 states and the District of Columbia); Hon. John B. Crawley, Is the Honeymoon over for Common-Law Marriage: A Consideration of the Con- tinued Viability of the Common-Law Marriage Doctrine, 29 C UMB . L. R EV. 399, 403 (1998–1999) (stating that only ten states and District of Columbia recognize common law marriage).

66.See Legal Information Institute, supra note 65 (providing data that the age to marry without parental consent is 18, with the exception of Mississippi and Nebraska); see also Marriage Laws (noting that in order to marry with- out parental consent, all but one state requires that a couple be 18), available at http://usmarriagelaws.com/ search/united_states/teen_marriage_laws/index.shtml (last visited Mar. 21, 2003); U.S. Teen Marriage License Laws (stating that in the United States, with the exception of Nebraska, the couple must be 18 in order to get married; Nebraska sets the age of majority at 19), available at http://marriage.about.com/library/bllteen.htm (last visited Mar. 21, 2003).

67.See Legal Information Institute, supra note 65 (providing data that the age to marry without parental consent in Mississippi varies with sex: male—17, female—15); see also Marriage Laws, supra note 66 (noting that in order for a marriage license to be issued to males under 17, or females under 15 years of age, parents or guardians need to give consent).

68.See Legal Information Institute, supra note 65 (providing data that the age to marry without parental consent in Nebraska is 19); see also Marriage Laws, supra note 66 (noting a minor under 19 years of age needs to obtain a consent to marriage from his or her legal guardian); Teen Marriage Laws (stating that in Nebraska applicants must be 19 years old to marry without parental consent), available at http://www.teenmarriagelaws.com/ (last visited Mar. 21, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law77 in the rest of the states. 69 If a girl (or a boy) is below the age of 16, parental or judicial consent is required. 70 In Kansas, for example, parental consent and/or permission of a judge is required for a 14 year-old male, and a 12 year-old female to marry. 71 Although the right to marry is a fundamental right according to Zablocki, the U.S. Supreme Court has distinguished that the right to marry for minors is not a fundamental right (requiring strict scrutiny), and therefore stricter regulations may be imposed. 72 Marriage is a state-regulated right. As long as a regulation does not infringe on each indi- vidual’s basic right to marry, states are given the freedom to set reasonable requirements. 73 Some states, but not all, have also imposed medical exam requirements and waiting period requirements. The medical exams that are imposed vary considerably, but apply to both sexes.

Connecticut requires females (and males) to undergo a venereal disease and rubella medical 69.See Moe v. Dickens, 669 F.2d 67, 68 (2d Cir. 1982) (noting that in order to get married parties must satisfy cer- tain legal requirements, which vary from state to state); see also Legal Information Institute, supra note 65 (show- ing that the age to marry with parental consent differs from state to state). See generally Leti Volpp, Blaming Culture for Bad Behavior, 12 Y ALE J. L. & H UMAN . 89, 100 (2000) (noting that in Utah and Texas, a parental consent or a court order allowing marriage is required at an age younger than 18).

70.See Legal Information Institute, supra note 65 (providing that for the parties under 18 years of age parental or judicial consent is required); see also Amy R. Brownstein, Why Same-Sex Spouses Should be Granted Preferential Immigration Status: Reevaluating Adams v. Howerton, 16 L OY. L.A. I NT’L & C OMP . L.J. 763, 780–81 (1994) (stating that marriages to which an underage person is a party usually require either parental or judicial consent to be valid, because the state has a legitimate, if not competing interest, in protecting minors). See generally Brent We i n s t e i n , From the Altar to the Prom: Underage Marriages in San Diego County, 11 J. C ONTEMP . LEGAL ISSUES 99, 100 (1999) (examining the California statutory requirements for underage marriage; noting that to obtain a California marriage license minors must obtain the written consent of their parents or guardians or obtain an order of the Superior Court granting the minors permission to marry).

71.See Legal Information Institute, supra note 65 (providing that Kansas requires either a parental consent or per- mission of a judge before permitting a 14 year-old male and a 12 year-old female to marry). See generally Hutch- ins v. District of Columbia, 118 F.3d 531, 559 (D.C. Cir. 1999) (noting that although right to marriage is fundamental, it might not apply below a certain age); Kirkpatrick v. Eighth Judicial Dist. Court ex rel. County of Clark, 2003 WL 1192883, at *7 (dissenting Chief Judge Agosti stated that the Supreme Court has never declared or suggested that a minor has a fundamental right to marry).

72.See Zablocki v. Redhail, 434 U.S. 374, 392, 386 (1978) (noting that reasonable state regulations that do not sig- nificantly interfere with the fundamental right to marry may legitimately be imposed); see also Melanie L. Jump, Wright v. Metrohealth Medical Center: Anti-Nepotism Policies Carve a Slice in the Fundamental Right to Marry—Is This the Wright or Wrong Decision?, 28 U. T OL. L. R EV. 841, 845 (1997) (discussing the standard of scrutiny to be applied to the state’s regulation of marriage; noting that reasonable regulations that do not significantly inter- fere with decisions to enter into the marital relationship may be legitimately imposed); Lynn D. Wardle, Loving v. Virginia and the Constitutional Right to Marry, 1790–1990, 41 H OW . L.J. 289, 304 (1998) (stating that under the Constitution, the freedom to marry resides with an individual and cannot be infringed by the state).

73.See Legal Information Institute, supra note 65 (noting that prior to marriage the medical exam, which includes tests for venereal disease and rubella, is required); see also Marriage Laws (stating that prior to marriage everyone should have a standard test for syphilis, and women under the age of 50 and capable of pregnancy must have a standard test for rubella), available at http://usmarriagelaws.com/search/united_states/connecticut/index.shtml (last visited Mar. 21, 2003); Premarital Requirements in Connecticut (providing that anyone who gets married in Connecticut must have a standard test for syphilis, and all women under the age of 50 and capable of preg- nancy must have a standard test for rubella), available at http://www.dph.state.ct.us/Laboratory/bloodt.htm (last visited Mar. 21, 2003). 78New York International Law Review[Vol. 16 No. 2 exam prior to marriage. 74 Oklahoma and West Virginia require the same medical exam for venereal disease, but a circuit court judge may waive the exam. 75 Many of the statutes provide exceptions or waivers to the general requirements. As another example, Wisconsin requires the applicant to receive information on AIDS. 76 Even though many states have required a waiting period before a license will be issued, the waiting period can be avoided in many of these states. Pennsylvania and Florida require a three- day waiting period, but the waiting period may be waived if the couple undergoes pre-marital counseling. 77 Florida and Texas do not require a waiting period before the issuance of a license, but do require a 72-hour waiting period following the issuance of the license before the mar- riage can take place. 78 Many of the states require some type of premarital counseling before marriage. Florida requires the couple to read a booklet about the rights and responsibilities of marriage before the license is issued. 79 74.See Legal Information Institute, supra note 65 (noting that prior to marriage both Oklahoma and West Virginia require tests for venereal disease and rubella (for females), but in both states the requirement of the tests could be waived by Circuit court judge); see also Marriage License Requirements (stating that in order to obtain a marriage license in Oklahoma and West Virginia a test for venereal diseases must be taken), available at http://www.vil- lageinc.com/marriage%20USA.htm (last visited Mar. 22, 2003). But see Marriage License Information (inform- ing that no medical exam is required to obtain a marriage license in West Virginia), available at http:// www.clergyservices.com/license_4.html (last visited Mar. 22 2003).

75.See Legal Information Institute, supra note 65 (stating that Oklahoma and West Virginia require couples to be tested for venereal disease).

76.See Legal Information Institute, supra note 65 (stating that Wisconsin requires the applicant to receive informa- tion on AIDS); see also Wisconsin Medical Society Policy Compendium (noting that Wisconsin Medical Society opposes requiring that each person applying for a marriage license in Wisconsin present to the county clerk a physician’s statement that the party has obtained, no longer than 30 days before applying, a test for the presence of HIV, and that each party intending to marry has provided the other with the test results), available at http:// 216.239.37.100/search?q=cache:XTSsc0Kts7MC:www.wisconsinmedicalsociety.org/health_policy/COMP/aids .cfm+wisconsin+marriage+aids+&hl=en&ie=UTF-8 (last visited Mar. 23, 2003); Marriage Laws, supra note 73 (noting that in Wisconsin a marriage license cannot be issued until a couple has been tested for the AIDS anti- body virus).

77.See Legal Information Institute, supra note 65 (noting that some states require couples to undergo pre-marital counseling if they wish to avoid the requisite waiting period); see also Marriage Laws, supra note 73 (discussing a three-day waiting period in Pennsylvania and Florida); Premarital Requirements in Connecticut, supra note 73 (providing that a three-day waiting period may be overcome by agreeing to undergo counseling).

78.See Legal Information Institute, supra note 65 (noting that Florida and Texas require a 72-hour waiting period following the issuance of the license before the marriage can take place); see also Marriage License Requirements, supra note 74 (stating that Florida and Texas do not require a waiting period before the issuance of a license). See generally Marriage License Information, supra note 74 (evaluating the marriage requirements of Florida and Te x a s ) .

79.See Legal Information Institute, supra note 65 (stating that applicants for a Florida marriage license must receive information about rights and responsibilities of marriage); see also Marriage Licenses (stating that one of the requirements for obtaining a marriage license is a written statement by the parties that they have completed a premarital preparation course and read or have been made aware of the rights and responsibilities of parties to a marriage as outlined in the Family Law Handbook), available at http://216.239.37.100/search?q=cache:vWBO- hEzRsC:clerk.co.pinellas.fl.us/marriage.htm+rights+responsibilities+marriage+florida&hl=en&ie=UTF-8 (last visited Mar. 22, 2003). See generally Jane Tanner & Robert Enstad, Requirements of a Marriage, C HI. TRIB ., Jan.

20, 1988 (stating that pre-marrital counseling is gaining popularity in some states). Summer 2003] Comparing Islamic Law and Anglo-American Law79 Marriage and the Family under Islam—Legality/Requirements In Islam, marriage is a commitment to life itself, to society, and to the meaningful survival of the human race. 80 Allah (God) created mankind out of one living soul, and created a soul for that spouse so that he might find comfort and rest in her. 81 Who Can Marry According to Islam, whoever is able to marry should marry. 82 However, a woman must give her consent to marriage. 83 For Muslim men, the only women who are lawful to marry are women of the Book—Muslims, Christians, and Jews. 84 If a Muslim woman marries outside of her religion, she is considered to be a disbeliever, and is thought to be living outside of Islam. 85 80.See Abdalati, supra note 37, at 115 (discussing the nature of marriage in Islam); see also Bharathi Anandhi Ven- katraman, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari’a and The Convention Compatible? Appendix I, 44 A M. U. L. R EV. 1949, 2001–02 (1995) (noting some of the characteristics of marriage under Islam). See generally Sarah A. Rumage, Resisting the West: The Clinton Administration's Promotion of Abortion at the 1994 Cairo Conference and the Strength of the Islamic Response, 27 C AL W. I NT’L L.J. 1, 36 (1996) (stating that the assignment of roles in marriage under Islam is done to preserve the marriage and family unit).

81.See Holy Qur’an (Al A’raf ) 7:107, available at http://www.alislam.org/quran/translation/7.html (last visited on Mar. 10, 2003); see also Abdalati, supra note 37, at 117 (discussing Islamic concepts of marriage); Bilal, supra note 11, at 145–46 (stating that Allah is the creator of the universe and mankind).

82.See The Translation of the Meanings of Sahih Al-Bukhari 20 (Dr. Muhammed Muhsin Khan, trans., 1997); see also Lindsey E. Blenkhorn, Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 S. C AL. L. R EV. 189, 195 (2002) (stating that the Qur’an encourages mar- riages for those who are able); Khaliq, supra note 11, at 29 (stating that once the prerequisites for marriage have been met, marriage is required under Islam).

83.See Kimberly Younce Schooley, Cultural Sovereignty, Islam, and Human Rights—Toward a Communitarian Revi- sion, 25 C UMB . L. R EV. 651, 670 (1994) (stating that the woman has a voice in the acceptance of a marriage pro- posal); see also Tamilla F. Ghodsi, Tying a Slipknot: Temporary Marriages in Iran, 15 M ICH . J. I NT’L L. 645, 661– 62 (noting that the contractual characteristics of Islamic marriage require both sides to be consenting); Meri Melissi Hartley-Blecic, The Invisible Women: The Taliban’s Oppression of Women in Afghanistan, 7 ILSA J. I NT’L & C OMP . L. 553, 577 (noting that under Islam a woman’s consent is required for a valid marriage).

84.See Holy Qur’an (Al Ma’idah) 5:5, stating:

This day (all) the good things are allowed to you; and the food of those who have been given the Book is lawful for you and your food is lawful for them; and the chaste from among the believing women and the chaste from among those who have been given the Book before you (are lawful for you); when you have given them their dowries, taking (them) in marriage, not fornicating nor taking them for paramours in secret; and whoever denies faith, his work indeed is of no account, and in the hereafter he shall be one of the losers.

See also Esack, supra note 33, at 557–58 (noting that Christians and Jews are also mentioned in the Qur’an); Sherman A. Jackson, Jihad and the Modern World: To ‘Abd al-Karim Salabuddin, 7 J. I SLAMIC L. & C ULTURE 1, 22 (2002) (stating that the Christians and Jews are the people of the Book).

85.See Maurits S. Berger, Conflicts Law and Public Policy in Egyptian Family Law: Islamic Law Through the Backdoor, 50 A M. J. C OMP . L. 555, 573 (2002) (stating that under the Qur’an, a marriage of a Muslim woman to a non- Muslim man is void); Entelis, supra note 34, at 1270 (noting that while under Islamic law Muslim men can marry non-Muslim women, Muslim women cannot marry non-Muslim men). 80New York International Law Review[Vol. 16 No. 2 The Prophet Mohammed is reported to have said that a woman is ordinarily sought as a wife for her wealth, her beauty, the nobility of her stock, or her religious qualities; but, fortu- nate is the man who chooses his mate for piety in preference to everything else. 86 Dowry—U.S. There is no present dowry requirement under Anglo-American law. When dowry did exist in the U.S. in the 17th and 18th centuries amongst Native Americans and marriages were arranged, dowry referred to a gift or payment by a bride’s family to the groom or his family at the time of marriage. 87 Land, livestock, money, or household possessions were used to make up the dowry. 88 In Philipose v. Philipose, a Florida court ruled that an award of a $15,000 lump-sum ali- mony to the wife was justified where the record supported a finding that the wife brought a $15,000 dowry into the marriage. 89 Dowry Requirement Before Marriage Under Islamic Law A Muslim woman has a right to demand a dowry from her prospective husband according to her standards and according to his means. 90 If she wants to disregard her right, she can accept him with little or no dowry. The dowry requirement for a man is to assure that the woman is wanted, needed, and that the man is prepared and willing to undertake his responsi- bilities, financial, or otherwise. Dowry (mahr) is also a symbolic gesture, indicating that the woman will be secure, and that the man is not looking for any material gains as his motive for entering the marriage. 91 If a divorce occurs, then half of the dower is due the man, unless the 86.See Holy Qur’an, supra note 81, at 7:107 (stating “[s]o he threw his rod, then lo! it was a clear serpent”); Abda- lati, supra note 37, at 115 (discussing the role of wives under Islamic law). See generally Kristen Cherry, Marriage and Divorce Law in Pakistan and Iran: The Problem of Recognition, 9 T ULSA J. C OMP . & I NT’L L. 319, 321–22 (2001) (discussing the categories of people who can and cannot be married under the Qur’an).

87.See Evan Haefeli, Life with Native Americans, Children, T HE WASH . TIMES , Oct. 14, 2001, at B8 (noting that in the 17th and 18th centuries land and livestock began to disappear from dowries); see also Kathleen Troher, The Whole Story; Thornton Quarry is Much More Than a Place That Provides Rock, C HI. TRIB ., Jan. 9, 1994, at SW-1 (stating that in 1836 a dowry of 160 acres was given for a Native American wife). See generally Clare Noonan, Getting Married, California Style Oakland Exhibit Hits Highlights of Big Day, T HE MODESTO BEE, June 1, 1995, at E1 (noting that many cultures have used forms of dowries, such as Native American crafts).

88.See Haefeli, supra note 87, at B8 (noting that in the 17th and 18th centuries land and livestock began to be replaced with household items in a woman’s dowry); see also Tr o h e r , supra note 87, at SW1 (noting that land was given as a dowry). See generally Noonan, supra note 87, at E1 (noting Native American crafts have been used as dowries).

89.See Philipose v. Philipose, 431 So.2d 698 (Fla. Dist. Ct. App. 1983).

90.See Abdalati, supra note 37, at 180 (discussing dowries under Islamic law); see also Judy Scales-Trent, African Women in France: Immigration, Family, and Work, 24 B ROOK . J. I NT’L L. 705, 719 (1999) (noting the obligation of dowry under the Qur’an); Angela K. Carlson-Whitley, Dowry Death: A Violation of the Right to Life Under Article Six of the International Covenant on Civil and Political Rights, 17 P UGET SOUND L. R EV. 637, 646 (1994) (noting Muslims have the right to demand dowries).

91.See Abdalati, supra note 37, at 180 (discussing dowries as symbolic gestures); see also Namratha S. Ravikant, Dowry Deaths: Proposing a Standard for Implementation of Domestic Legislation in Accordance with Human Rights Obligations, 6 M ICH . J. G ENDER & L. 449, 454 (2000) (noting the Muslim equivalent of the dowry is the mahr); Pascale Fournier, The Erasure of Islamic Difference in Canadian and American Family Law Adjudica- tion, 10 J. L. & P OL’Y 51, 54 (2001) (noting that the mahr is the right of the woman). Summer 2003] Comparing Islamic Law and Anglo-American Law81 wife remits it. 92 The giving of a dowry is still widely practiced in the Islamic world; a typical dowry, for example, can be $20,000.

Dowry has been perceived as discouraging marriage for a long time, and many societies have tried to deal with it in their own ways. In what can be described as a unique example of social responsibility borne by governments, Dubai courts, in contradiction to Islamic law, have undertaken the responsibility to reduce the burden of skyrocketing dowry from the shoulders of young men. At the Dubai Shopping Festival, an award is given to the couple with the lowest dowry. 93 This award comprises a diamond set for the bride, two tickets to Mecca for the mar- ried couple, a luxury watch for the bride’s father, and luxury watch for the groom. The lowest dowry is an Islamic principle that the “most blessed women are those with the lowest dow- ries.” 94 The bride’s family fixes the dowry that is paid by the man to the bride. There is a sepa- rate amount which is paid by the groom for the bridal wear and furniture. There has also been a case where the family, although they were rich, gave only five Dirham (ten dollars) for a dowry to the bride in one of the Emirates, as reported by Abdul Salam Darwash, Director of the Family Guidance Department in the Dubai Court. 95 Legality/Requirements In Islam, a marriage must be witnessed by two men and must be publicized in the com- munity, in order to be legal. 96 The woman does not take the name of her husband, but retains her own name. The Prophet said that a matron should not be given in marriage except after consulting her, and a virgin should not be given in marriage except after her permission. 97 Mar- riage is based on a contract whose terms are agreed upon by each party. Some countries, like 92.See Holy Qur’an (Al Baqarah) 2:236-7 (noting that “if you divorce them before consummation but after the fix- ation of a dower for them, then half of the dower is due them unless they remit it”); see also Blenkhorn, supra note 82, at 200–02 (discussing the role of the mahr in Islamic divorces); Fournier, supra note 91, at 60 n.40 (not- ing that if the woman ends the marriage, all or part of the mahr has to be returned to the husband unless he refuses it).

93.See Munira A. Fakhro, Gender, Politics, and the Gulf Region, 5 M IDDLE EAST POLICY 166–170 (1992) (stating the dowry award); see also Abeya Al Bakry, Eternal Bond, G ULF NEWS , Mar. 7, 2002 (noting that the lowest dowry award is an important part of the Festival), available at LEXIS, News Library, News Group File; Wedding Customs Around the Muslim World (discussing the Dubai Shopping Festival), at http://www.zawaj.com/wedding- ways /bedouin_color.html (last visited Mar. 19, 2003).

94.See Fa kh ro , supra note 93, at 166–70 (discussing dowry awards); see also Richard A. Posner, Sex, Reason, and a Taste for the Absurd, 81 G EO. L.J. 2413, 2442 (1993) (stating that women who are more valuable in the marriage market require lower dowries). But see Ronald Lee, The Rom-Vlach Gypsies and the Kris-Romani, 45 A M. J.

C OMP . L. 345, 382 (1997) (stating that dowries are lower for divorcees and older widows).

95.See Fa kh ro , supra note 93, at 166 (discussing dowry awards); see also Abeya Al Bakry, supra note 93 (stating that there is a separate amount paid by the groom for bridal wear and furniture); A Sorry State of Affairs, T HE STATES - MAN (India), Feb. 6, 2003 (noting that furniture can be used as a dowry), available at LEXIS, News Library, News Group File.

96.See Schooley, supra note 83, at 670 (stating that a wedding must have two male witnesses or one male can be replaced by two females, since under Islamic law two females equal one male witness); Khaliq, supra note 11, at 30 (stating that there must be two witnesses to the marriage for it to be legal).

97.See The Translation of the Meanings of Sahih Al-Bukhari, Vol. 7, No. 3 (Dr. Muhammed Muhsin Khan, trans., 1997); see also Hartley-Blecic, supra note 83, at 577 (stating that a woman must consent to marriage for it to be legal); Sayeh, supra note 51, at 325 (stating that the woman has a right to refuse or accept a marriage offer, regardless of the opinion of her parents). 82New York International Law Review[Vol. 16 No. 2 Morocco, have two weddings: the wedding of the contract, and later, the wedding of cus- toms. 98 The weddings can be close together or up to one year apart. The bride, depending on the wealth of the husband, who pays for the weddings, changes her dress seven times to repre- sent the seven days of the week. Sex is not allowed until both weddings are performed.

Under Islamic law, a girl can be just about any age to marry. Khadija, an old twice-wid- owed lady who was fifteen years senior to the Prophet Mohammed (PBUH), was his first wife.

99 Aisha, one of the wives of the Prophet (PBUH) was eight years-old; they did not have sexual relations until she reached the age of puberty. 100 Under Islamic law, marriage does not mean sex—a man can be betrothed to a woman and wait for her until she matures. 101 Anglo-American Law—Sex Outside of Marriage Most states hold that sex with a girl below the age of sixteen is statutory rape, even if she consents. 102 States, in a campaign to protect their citizens against disease and unwed pregnancy (lead- ing to burdens on the welfare system), have been airing commercials against pre-marital sex. 103 98.See Francois Garrigue, Enchanted Morocco, 117 (1970) (noting the two-wedding system of Moracco); see also Ghodsi, supra note 83, at 665 (noting that in Islam there is a contractual marriage and a ceremonial marriage); Khaliq, supra note 11, at 30 (discussing the religious and ceremonial aspects of Islamic marriage in comparison with the contractual aspects).

99. Lady Khadija initiated the marriage contract, and he accepted. With Khadija alone, the Prophet (PBUH) lived until he was over 50 years old, and by her he had all his children, except for Ibrahim. She lived with him until she was more than 65 years old. She was a pillar of support for him, and supported (both emotionally and finan- cially) all of his endeavors. It was reported that Aisha was jealous of even the memory of Khadija. Sunnah–Inter- view with Mohammed Mokhtar, Imam (cleric), Islamic Center of the South Plains, Lubbock, Tex. (June 16, 2002).

100. Interview with Mohammed Mokhtar, Imam (cleric), Islamic Center of the South Plains, Lubbock, Tex. (June 16, 2002). Aisha was one of the biggest supporters of the Prophet (PBUH). She is remembered for her intelli- gence and outstanding memory. The Prophet (PBUH) often referred women’s private questions/matters about Islam to her. More than 1,000 hadith have been reported by her, and she is one of the greatest teachers of the hadith.

101.See Hartley-Blecic, supra note 83, at 577 (stating that marriage does not mean sex under Islamic Law); see also Khaliq, supra note 11, at 30 (explaining why married men should not expect sex upon marriage). See generally Schooley, supra note 83, at 670 (defining the role of sex in a marriage).

102. 1.3 women in the U.S. are forcibly raped every minute. That is, according to the National Victims’ Center, 78 per hour, 871 a day, or 683,000 a year. Ironically, only 2% of the rapists in the U.S. are convicted or imprisoned, as reported by the 1993 Senate Judiciary Committee. Nationwide, violent crime in the U.S., which includes murder, rape, robbery, and aggravated assault, rose slightly by 1/10 of a percent. One explanation for the trend is the diffusion of guns into urban centers. Forty-eight percent of households in the U.S. have some type of gun.

Gun prevalence and violence might result from other factors, including social homogeneity and economic ine- quality—Forum for Applied Research and Public Policy, Dec. 22, 2002, Gail Group, University of Tennessee, E.E.R.C. #4, Vol. 15, 68. Pornography and social disorganization (conditions that undermine traditional institu- tions such as the family, religion, and the neighborhood) also contribute to rape, according to a state-level analy- sis done by the Family Violence Research Program: Four Theories of Rape in American Society: A State-Level Analysis 95 (Yale University Press 1989).

103.See Ta m a r L e w i n , Sexual-Abstinence Grants Put to Broad Use by States, N.Y. T IMES , Apr. 4, 1999, at 18 (noting that states have used federal grants to initiate media campaigns in support of abstinence); see also Randall Roth- enberg, Drive to Aid Children Has New Test, N.Y. T IMES , Apr. 3, 1990, at D19 (discussing Maryland’s advertising campaign to encourage children not to engage in pre-marital sex); Cheryl Wetzstein, Campaigns to Stop Teen Pregnancies Hitting the Streets, W ASH . TIMES , Mar. 4, 1998, at A2 (stating that at least 40 states have established media campaigns to reduce the rate of teenage pregnancy). Summer 2003] Comparing Islamic Law and Anglo-American Law83 Many states accept adultery as a ground for divorce. 104 However, in American society, marriage is declining, most adults have had at least six partners before marriage, and 70 percent of Amer- icans (both married men and women) have extra-marital affairs. 105 Islamic Law Regarding Sex Outside of Marriage Sex outside of marriage, according to the Holy Qur’an, is forbidden. Islam is very strict in forbiding zina (fornication and adultery), as exemplified by the saying: “And do not come near zina; indeed, it is an abomination and an evil way.” 106 A woman or man who is guilty of adultery or fornication shall be flogged 100 times. A married woman or a married man, if guilty of adultery, shall be stoned to death. There must be four witnesses to prove a woman or a man guilty of fornication or adultery. 107 A recent Nigerian case involving a woman named Safiya Huseini dealt with adultery. On October 9, 2001, an Upper Sharia Court in Gwadaba, fifty kilometers from the Sokoto State capital, sentenced 35 year-old Huseini to death by stoning. 108 However, about six months later, Huseini’s death sentence was discharged on technical grounds, because she had been raped and impregnated by her neighbor. 109 This was the first Sharia case to draw capital punishment since the adoption of the Islamic Legal Code in almost all of northern Nigeria. 110 104.See, e.g., N.Y. D OM . REL. LAW § 170 (Consol. 2003) (stating that adultery is a ground for divorce); see also Lou- ise Everett Graham, Starting Down the Road to Reform: Kentucky’s New Long-Arm Statute for Family Obligations, 81 K Y. L.J. 585, 590 n.19 (1993) (listing the grounds for divorce in various states); Laura Bradford, The Counter- revolution: A Critique of Recent Proposals to Reform No-Fault Divorce Laws, 49 S TAN . L. R EV. 607, 610 (1997) (noting that adultery is a ground for divorce in 28 states).

105.See Karen S. Peterson, Marriage Losing Key Role in Families, USA T ODAY , Nov. 24, 1999, at 18D (noting that 26 percent of households contain married couples with children); see also Charles C. Mann, Sex, Lies & Research, C HI. SUN-TIMES , Nov. 13, 1994, at 12 (stating that a survey found that men had an average of 6.8 sex partners, while women had 2); Beth Sherman, Leading Double Lives, N EWSDAY , Nov. 21, 1992, at 19 (noting that 70 per- cent of men and 50 percent of women will have extra-marital affairs during their lives).

106.See Holy Qur’an 17:32.

107.See Holy Qur’an 24:2 (stating “[t]he woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment”); see also Rose Marie Karad- sheh, Creating an International Criminal Court: Confronting the Conflicting Criminal Procedures of Iran and the United States, 14 D ICK . J. I NT’L L. 243, 272 (1996) (noting that four witnesses are necessary to confirm the adulterous act); Asifa Quraishi, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensi- tive Perspective, 18 M ICH . J. I NT’L L. 287, 312 (1997) (stating that the Qur’an requires that there be four wit- nesses to establish adultery).

108.See James Astill, Nigerian Woman to Hear Verdict on Death by Stoning, G UARDIAN , Mar. 25, 2002, at 13 (stating that Huseini had been divorced for two years at the time of the affair); see also Safiya Lives, A FRICA NEWS , Apr. 4, 2002 (noting that Huseini’s case drew national attention); Dan Isaacs Sokoto, Allah Will Decide If I Die for Adul- tery, O BSERVER , Dec. 9, 2001, at 21 (stating that Huseini was found guilty of adultery because she conceived a child out of wedlock).

109.See Paul Marshall, Radical Islam in Nigeria, W EEKLY STANDARD , Apr. 15, 2002, at 15 (noting that three days before Huseini’s acquittal another Nigerian was sentenced to death for adultery); see also Prosecutor Wants Nige- rian Woman Who Had Child Out of Wedlock to Be Executed, A GENCE FRANCE PRESSE , Aug. 5, 2002 (stating that an “international outcry” played a significant role in Huseini’s release); Safiya Lives, supra note 108 (stating that local officials campaigned to stop Huseini’s death sentence).

110.See Marshall, supra note 109 (stating that Sharia takes precedence over the Nigerian Constitution); see also Nige- ria; Adamant on Fatwa, A FRICA NEWS , Dec. 18, 2002 (stating that Sharia was extended from civil law to crimi- nal law in 2000); Safiya Lives, supra note 108 (stating that Sharia law had only recently been implemented at the time of Huseini’s arrest). 84New York International Law Review[Vol. 16 No. 2 According to the Qur’an, zina leads to confusion of lineage, child abuse, the breakup of families, bitterness in relationships, the spread of venereal diseases, and opens the door to a flood of lusts and self-gratifications. 111 Khulwah (Privacy Between a Man and a Woman) Islam prohibits khulwah between a man and a woman who are outside the degree of a mahrem relationship (a mahrem, with reference to a woman, is her husband or any male relative with whom marriage is permanently forbidden, such as her father, grandfather, son, brother, uncle, or nephew. A mahrem is basically a male chaperone that has some familial relationship).

The Holy Qur’an states: “Whoever believes in Allah and the Last Day may never be in pri- vacy with a woman without there being a mahrem of hers with her, for otherwise Satan will be the third person with them.” 112 The Prophet considered lustful looks at a person of the opposite sex as “zina of the eye”:

the eyes also commit zina, and their zina is the lustful look. 113 Prohibition of Looking at the “Awrah” of Others A woman may not look at a man’s body from the navel to the knee—his “awrah.” Like- wise, a man should not look at a woman’s awrah. 114 Polygamy (Polygyny) Islam permits a Muslim man to marry up to four wives at one time. More specifically, if a man has more than one wife at a time, the term is called polygyny. 115 Originally, the concept of 111.See Holy Qur’an 17:32, n.2215 (noting that “[a]dultery . . . opens the road to many evils. It destroys the basis of the family: it works against the interests of children born or to be born; it may cause murders and feuds and loss of reputation and property, and also loosen permanently the bonds of society”). See generally Holy Qur’an 2:195, 2:185 (stating reasons for contraception: “And do not be cast into ruin by your own hands,” and “Allah desires ease for you, and He does not desire hardship for you”); Y USUF AL QARADAWI , THE LAWFUL AND THE PROHIB - ITED IN ISLAM 198 (1999) (noting that contraception, particularly coitus interruptus, is widely practiced, as it was in the time of the Prophet).

112.See A L QARADAWI , supra note 111.

113.See Abdelwahab Bouhdiba, Sexuality in Islam (noting that there can also be zina of the tongue (sexual language), zina of the hand, and zina of the leg), available at http://www.well.com/user/aquarius/bouhdiba.htm (last visited Mar. 20, 2003); see also Farheen Hassan . . . And What About Muslim Men? (discussing the origin of the term “zina of the eye”), available at http://www.guidedones.com/metapage/gems/formen10.htm (last visited Mar. 20, 2003); Islam Online, The Prohibition of Approaching Zina (stating that such a look “gives sexual pleasure and gratification in an unlawful way”), available at http://www.islamonline.org/fatwa/english/FatwaDisplay.asp ?hFatwaID=9959 (last visited Mar. 20, 2003).

114.See Hussein Khalid Al-Hussein & Ahmad Hussein Sakr, Introducing Islam to Non-Muslims (defining the term “awrah”), available at http://www.usc.edu/dept/MSA/reference/glossary.html (last visited Mar. 20, 2003); Allamah Muhammad Jawad Maghniyyah, The Rules of Modesty (noting that the four schools of Islamic law have different views on awrah), available at http://www.themodernreligion.com/basic/charac/essays_Rules_Modesty .htm (last visited Mar. 20, 2003).

115.See Berger, supra note 85, at 574 (stating that only Muslim men have this right); Ann Elizabeth Mayer, A “Benign” Apartheid: How Gender Apartheid Has Been Rationalized, 5 UCLA J. I NT’L L. & F OREIGN AFF. 237, 254 (2000) (noting that polygyny is less common today). Summer 2003] Comparing Islamic Law and Anglo-American Law85 polygamy arose after the Battle of Uhad (625 A.D., Madinah, Saudi Arabia), in which many Muslim men were killed, and there were not enough men for the surplus of widows and chil- dren. 116 Basically, polygyny is thought to solve social problems—providing husbands for widows, providing children in the marriage if the first wife is barren, preventing illicit affairs, or provid- ing another wife if the first wife is chronically ill. A Muslim man is allowed to marry up to four wives at one time, as long as he can treat all wives equally. 117 The Holy Qur’an states: “But if you fear that you will not be able to do justice (among them), then marry only one.” 118 Thus, the Holy Qur’an actually discourages having more than one wife at a time. 119 However, accord- ing to the Holy Qur’an, a man has a right to take up to four wives, unless the man and wife otherwise agree in the marriage contract. 120 The Prophet Mohammed said, “He who has two wives and does not demonstrate justice, fairness, and equality amongst them will come on the Day of Resurrection with one of his sides hanging down (paralyzed).” 121 A wife can prevent a polygamous marriage by signing a pre-nuptial agreement that she will be the only wife in the marriage. 122 116.See Khaliq, supra note 11, at 30 (noting that scholars have argued that polygamy is only allowed in similar cir- cumstances); see also Sayeh, supra note 51, at 328 (stating that ten percent of Muslim men were killed in the bat- tle); Women Lawyers Demand Abrogation of Discriminatory Laws Against Women, B US. R EC., Mar. 1, 2002 (noting that this Qur’an verse is subject to misinterpretation).

117.See Holy Qur’an 4:129 (stating that “[y]e are never able to be fair and just as between women, even if it is your ardent desire: But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air). If ye come to a friendly understanding, and practise self-restraint, Allah is Oft-forgiving, Most Merciful”); see also Todd M. Gillett, The Absolution of Reynolds: The Constitutionality of Religious Polygamy, 8 W M. & M ARY BILL RTS. J. 497, 508 (2000) (noting that the husband must be able to support all his wives); Interview with Moham- med Mokhtar, Imam, Islamic Center of the South Plains, Lubbock, Tex. (June 16, 2002) (stating that the Prophet Mohammed was the only Islamic man who was allowed to have more than four wives at one time).

118.See Holy Qur’an 33:51, n.3749.

119.See Venkatraman, supra note 80, at 1966 (stating that this standard is impossible to meet); see also Entelis, supra note 34, at 1301 (noting that the Qu’ran is subject to multiple interpretations); Abdullah Ahmad, It’s a Serious Game, Polygamy, N EW STRAITS TIMES (Malaysia), Jan. 9, 2002, at 10 (stating that it is unlikely that a man can do justice to more than one wife).

120.See Holy Qur’an 4:35 (calling for marrying three or four women to deal with the problem of orphans, only if you can treat them equally; if not then only one); Neil MacFarquhar, Cairo Journal; Saddam's 'Weapons' Costly, 'Bush- Sharon' Cheap, N.Y. T IMES , Nov. 7, 2002, at A4 (indicating that four is the maximum number of wives a man can marry under Islam); Susan Sachs, A Nation Challenged: Islam; Where Muslim Traditions Meet Modernity, N.Y.

T IMES , Dec. 17, 2001, at B1 (noting that Islam vastly improved the lot of women in the past by limiting the number of wives to four and treating them all equally).

121.See H ADITH as reported by Tirmithee.

122.See Courtney Lingle, Muslim Women Share Views, D ENV . POST , Dec. 10, 2001, at A22 (noting that Muslim women are not forced into polygamous marriages); see also Malaysian Muslim Women Get Tough on Polygamy, A GENCE FRANCE PRESSE , Jan. 18, 2003 (stating that Muslim women in Malaysia have recently learned that they have a right to include a clause in their marriage contracts that prohibits polygamy); Mary Wiltenburg, C HRIS - TIAN SCI. M ONITOR , Oct. 23, 2001, at 15 (noting that polygamy is only allowed if the marriage contract per- mits it). 86New York International Law Review[Vol. 16 No. 2 The reality is that less than two percent of Muslim men have more than one wife. 123 In fact, the Tunisian government has banned polygamy since the 1960s. The Turkish and Algerian governments have also banned polygamy. 124 Polygamy—U.S. Polygamy/bigamy, outlawed in the U.S., is viewed as an offense to society, and is punish- able by law. 125 Marriage, upon which American society is built, is a civil contract that is neces- sarily regulated by the government. 126 Although the U.S. Supreme Court recognized the constitutional right to freedom of religion, the Court could not allow religious beliefs to become superior to statutory law, consequently allowing each person of the United States to ignore the government and make his or her own law. The law now stands that multiple mar- riages are illegal. 127 However, the Mormons in the U.S. have continued to practice polygamy. 128 In a recent decision in Utah, Tom Green, a Mormon, who is serving a five-year jail sentence for polygamy, 123.See Dr. M. Amir Ali, Ph.D., Stereotypes, The Institute of Islamic Information and Education (declaring less than one percent of married Muslim men have more than one wife), at http://www.iiie.net/Articles/Stereotypes.html (last visited Mar. 18, 2003); Nadirah Z. Sabir, Al-Amin Case Brings Unusual Custom to Light: Islam and Polyg- amy, T HE ATLANTA J. C ONST . (positing that less than five percent of Muslim unions are polygamous), at http:/ /www.accessatlanta.com/ajc/opinion/sabir/polygamy.html (last visited Mar. 18, 2003); Shahid Athar, M.D., Sex Education Questions from Muslim Youth, Islamic Virtual School, at http://www.islamicschool.net/articles/ sexeducation1.htm (last visited Mar. 18, 2003).

124.See Iain Mayhew, Iain Mayhew in Tunisia: Where Luke Skywalker Wouldn’t Feel Out of Place Amid the Timeless Sands, T HE MIRROR , Apr. 6, 2002, at 46 (indicating polygamy was banned in Tunisia); Rozi Ali, Ironing out the Wr i n k l e s, N EW STRAITS TIMES PRESS (Malaysia) Feb 1, 2003, at 10 (noting that Tunisia banned polygamy); Charles P. Wallace, Marriage Costly; Arabs’ Path to Altar No Walk in Park, L.A. T IMES , Nov. 4, 1986, at 1 (noting that Tunisia, Algeria and Iraq have banned polygamy).

125.See Reynolds v. United States, 98 U.S. 145, 165–67 (l878) (explaining that there has never been a time in the United States that polygamy was not seen as an offense to society); see also N.Y. P ENAL LAW § 255.15 Bigamy Laws (Class E Felony) (describing bigamy under New York penal law); Richard A. Vazquez, The Practice of Polyg- amy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Con- stitutional Jurisprudence, 5 N.Y.U. J. L EGIS . & P UB. POL'Y 225, 228 (2001) (repeating the Reynolds Court, saying: “Polygamy has always been odious among the northern and western nations of Europe . . .”).

126.See Reynolds, 98 U.S. at 166 (describing that marriage essentially is a contract and is regulated by law); see also The Evolution of the Right to Privacy After Roe v. Wade, 3 A M. J. L. & M ED. 368, 410 (1987) (stating that states have an interest in maintaining and regulating marriage); Alyson F. Finkelstein, A Tug of War: State Divorce Courts Versus Federal Bankruptcy Courts Regarding Debts Resulting From Divorce, 18 B ANKR . D EV. J. 169, 171 (2001) (claiming that state legislatures generally have the power to regulate marriage, family, and divorce).

127.See Reynolds, 98 U.S. at 166 (determining that allowing free exercise of religion to trump the law of the land would allow every person to become law unto himself ); see also Adrien Katherine Wing, Po ly gamy f rom South er n Africa to Black Britannia to Black America: Global Critical Race Feminism as Legal Reform for the Twenty-first Cen- tury, 11 J. C ONTEMP . LEGAL ISSUES 811, 835 (2001) (stating that in the United States polygamy is illegal); Donald L. Beschle, The Conservative As Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Jus- tice O’Connor, 62 N OTRE DAME L. R EV. 151, 159 (1987) (indicating that in 1878 a federal statute making polygamy illegal upheld against a free exercise of religion attack).

128.See Mormon in Polygamy Case Sentenced to Five Years for Statutory Rape, A GENCE FRANCE PRESSE , Aug. 28, 2002 (indicating that Tom Green, a Mormon, has five wives and is a practicing polygamist); Edward Brumby, What Is in a Name: Why the European Same-Sex Partnership Acts Create a Valid Marital Relationship, 28 G A. J. I NT'L & C OMP . L. 145 (1999) (stating that some Mormons still practice polygamy); The Principle (displaying an article by Stewart Bell claiming that there are still some Mormons practicing polygamy), at http://www.polygamy- info.com/plygmedia%2002%2069natlpst.htm (last visited Mar. 18, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law87 was found guilty of statutory rape since one of his five wives was 13 when he married her.

Green, who has fathered 33 children, came under the media spotlight a year ago when he unsuccessfully defended his Mormon religious right to have five wives, and was sentenced to a five-year term. 129 Polygamy/bigamy was outlawed in the United States in l896, although it is estimated that some 30,000 to 50,000 Mormons still practice bigamy quietly in Utah. Some 70 percent of Utah’s citizens are Mormon. 130 Green’s is the first case of bigamy to be tried in Utah in 50 years. His second wife, Linda Kunz, was 13 when Green, then 37, took her to Mexico in 1986 to marry her. She had his son before her 14th birthday. Kunz is still married to him 16 years later and refused to testify against him. 131 Wife Beating/Battered Women—U.S. The common law rule, which was followed in the United States for centuries, allowed a husband great latitude in dealing with his chattel (property), including his wife and children.

The husband, under common law, could give his wife moderate correction. 132 Since he was responsible for answering for her misbehavior, the law thought it reasonable to entrust him with the power of restraining her, by domestic chastisement, in the same manner that a man 129.See Mormon in Polygamy Case Sentenced to Five Years for Statutory Rape, supra note 128 (highlighting the details of Tom Green’s conviction of having sexual relations with a minor, Linda Kunz, when she was 13 and he was 37); James M. Donovan, Rock-Salting the Slippery Slope: Why Same-Sex Marriage is not a Commitment to Polygamous Marriage, 29 N. K Y. L. R EV. 521, 521 n.9 (2002) (indicating that Tom Green was convicted for polygamy); Leti Vo l p p , Feminism Versus Multiculturalism, 101 C OLUM . L. R EV. 1181, 1218 n.40 (2001) (noting the prosecution of Tom Green for polygamy in Utah, a first in several decades).

130.See Mormon in Polygamy Case Sentenced to Five Years for Statutory Rape, supra note 128 (positing that there were 30,000 to 50,000 Mormons practicing polygamy in Utah); BBC Religion & Ethics, The Mormons (placing the number of practicing polygamists in Utah, Idaho, Montana and Arizona at over 30,000), available at http:// www.bbc.co.uk/religion/religions/mormon/features/polygamy.shtml (last visited Mar. 18, 2003); Irwin Altman, Polygamous Family Life: The Case of Contemporary Mormon Fundamentalists, 1996 U TAH L. R EV. 367, 369 (1996) (estimating that there are 20,000–40,000 Mormons practicing polygamy).

131.See Ryan D. Tenney, To m Green, Common-law Marriage, and the Illegality of Putative Polygamy, 17 BYU J. P UB.

L. 141, 142–44 (2002) (stating that Tom Green prosecuted for charges of bigamy, criminal non-support and child rape by marrying 13 year-old Linda Kunz); see also Associated Press, Utah Polygamist Sentenced in Child Rape; Man Sentenced to 5 Years in Jail; Wife Defends Him, C HI. TRIB ., Aug. 28, 2002, at N10 (highlighting the details of the Tom Green case and how Linda Kunz did not testify against him). See generally Ros Davidson, With These Rings I Thee Wed; The Olympic Flame Will Burn in Utah Next Month When the Winter Games Open in Salt Lake City. But, Asks Ros Davidson, in a State Renowned for Polygamy and Where Alcohol and Sex Outside Marriage Are Frowned Upon, Can the Church of Latter-day Saints Stand the Scrutiny?, S UNDAY HERALD (Scotland), Jan. 20, 2002, at 5 (noting that Tom Green impregnated Linda Kunz in 1986, and married her when she was 13, increas- ing his number of wives to five).

132.See Rana Lehr-Lehnardt, Treat Your Women Well: Comparisons and Lessons From An Imperfect Example Across the Wa t e r s, 26 S. I LL. U. L.J. 403, 414 (2002) (showing that there is a common law rule allowing men great discre- tion in relations with their property or chattel, including women and children); Susan Frelich Appleton, From the Lemma Barkeloo and Phoebe Couzins Era to the New Millennium: 130 Years of Family Law, 6 W ASH . U. J. L. & P OL'Y 189, 191 (2001) (noting that Blackstone said a husband in common law was allowed to give his wife mod- erate correction); Andrew T. Fede, Bondage, Freedom & The Constiution: The New Slavery Scholorship and Its Impact on Law and Legal Historiography: Private Law and United States Slave Regime: Article: Gender in the Law of Slavery in the Antebellum United States, 18 C ARDOZO L. R EV. 411, 423 (1996) (stating that Blackstone wrote that the old common law allowed a man to give his wife moderate correction). 88New York International Law Review[Vol. 16 No. 2 was allowed to correct his apprentices or children. 133 U.S. courts permitted a husband to restrain a wife concerning her liberty, in case of gross misbehavior. 134 The “rule of thumb” rule excused a husband of criminal prosecution for beating his wife with a stick no bigger than his thumb. 135 In Texas, for example, honor killing, which allows a man by law to kill his wife if he found that she had committed adultery, was authorized until 1973, when Article 1220 was repealed.

136 Utah, New Mexico, and Georgia also had statutes or case law that excused a hus- band or father from criminal charges for killing a wife or daughter who was unchaste, but such provisions were repealed in the 1970s. 137 133.See Lehr-Lehnardt, supra note 132, at 414 (citing an old common law allowing the husband to give his wife moderate correction); see also Bradley v. State, 1 Miss. 156, 158 (l824) (stating that physical chastisement of the wife by the husband is okay as long as it is in moderation); Appleton, supra note 132, at 191 (stating that com- mon law extended the moderate correction allowable to a man’s wife is extended to his children as well).

134.See Bradley, 1 Miss. at 158 (stating how at least 24 states, as of 1994, have eliminated the marital rape exemption, and many other states have qualified the exemption).

135.See Reva Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Y ALE L.J. 2117 (1996) (indicating in State v. Rhodes, 61 N.C. 453 (N.C. 1868), that as long as the switch is within the rule of thumb, meaning no thicker than a man’s thumb, some courts will see that as discipline and not assault and battery); Berta Esperanza Hernandez-Truyol, Conceptualizing Violence: Present and Futre Developments in International Law: Panel I:

Human Rights & Civil Wrongs at Home and Abroad: Old Problems and Paradigms: Sex, Culture, and Rights: A Re- Conceptualization of Violence for the Twenty-First Century, 60 A LB. L. R EV. 607, 627 (1997) (claiming that the courts traditionally have allowed husbands to beat their wives with sticks no thicker than his thumb); Jeanine Ferris Pirro, Legal Developments: Disquieting the Silence: The Responsibility of Change, 58 A LB. L. R EV. 1253, 1256 (1995) (explaining that a man is limited to beating his wife with a stick no thicker than his thumb, hence the “r u le of t h um b” ).

136.See Tex. [Penal Code] Ann. Art. 1220, repealed in 1973 by Tex. Gen. Law, Ch. 399 §3(a), which states in perti- nent part:

Adultery as justification: Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection [furnishing the old Texas law that adds a justification to homicide when the husband catches the wife committing adultery]. Id.

See also Kristian G. Miccio, Notes from the Underground: Battered Women, the State, and Conceptions of Account- ability, 23 H ARV . W OMEN 'S L.J. 133, 172 n.169 (2000) (explaining that in Pauline v. State, 1 SW. 453–54 the court held that a homicide is manslaughter if a man kills his wife at the moment he learns of her adultery); Lama Abu-Odeh, Comparatively Speaking: The “Honor” of the “East” and the “Passion” of the “West,” 1997 U TAH L. R EV.

287, 299 (1997) (explaining that honor killings were accepted in Texas, Georgia, and New Mexico until the early 70s).

137.See Lehr-Lehnardt, supra note 132, at 442 (arguing that the United States has eliminated laws that allow honor- killings and Arab laws should follow); see also Utah Code Ann. § 76-30-19 (1953), having been on the books since 1876, was repealed by 1973 Utah Laws, ch. 196 §76-10-1401. The 1897 New Mexico statute was finally repealed in 1973 by N.M Laws ch. 241, § 6. Georgia finally overruled Biggs v. State, 29 Ga. 723 (1860), in 1977.

See Burger v. State, 231 S.E.2d 769 (Ga. 1977) (indicating that the Supreme Court of Georgia decided a man was guilty of murder after killing his wife and her lover after catching her committing adultery). Summer 2003] Comparing Islamic Law and Anglo-American Law89 As recently as 1994, women in Maryland were outraged when a Maryland judge gave a light sentence (18 months in jail and 50 hours of community service in a domestic violence program) to a cuckholded husband who shot his wife to death when he found her with another man.

138 The Bureau of Justice reports that each year one million American women suffer nonfatal violence by an intimate partner. 139 The Bureau of Justice also reports that 28 percent of all annual violence against women is perpetrated by intimates. 140 That means that nearly one in three adult American women will experience at least one physical assault by a partner during adulthood. 141 Domestic Violence—Muslim Women The Holy Qur’an forbids domestic violence/wife-beating. In fact, the only time that wife beating is mentioned in the Holy Qur’an is in Surah (Al Nisa) 4:34, in the instance of divorce.

In the case of family disputes regarding divorce, four steps are mentioned, and are to be taken in this order: (l) verbal advice or admonition, (2) suspension of sexual relations, (3) some slight physical correction, but not any type of abuse or cruelty, and (4) family council. 142 138.See Lehr-Lehnardt, supra note 132, at 404 (telling the story of a husband returning home to catch his wife com- mitting adultery and then killing her with a rifle a few hours later after heavy drinking); see also Kathy Mack, Developments in Criminal Law and Criminal Justice: Gender Awareness in Australian Courts—Violence against Wo m e n, 5 C RIM . L.F. 788, 802 n.11 (1994) (noting the light sentence given in the Maryland case, State v. Pea- cock, where Peacock killed his wife a few hours after he caught her in bed with another man). See generally Lynn Hecht Schafran, Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues:

There’s No Accounting for Judges, 58 A LB. L. R EV. 1063, 1063 (1995) (highlighting the especially light sentence in the case of State v. Peacock).

139.See American Bar Association and Domestic Violence Report (estimating conservatively that 1 million women each year suffer nonfatal violence committed by an intimate), available at http://www.abanet.org/domviol/ stats.html (last visited Jan. 23, 2002); see also Bureau of Justice Special Report: National Crime Victimization Survey, Violence Against Women, Jan. 1994 (indicating approximately 1,008,000 women are subjected to vio- lent crimes consisting of rape/sexual assault, robbery, aggravated assault, simple assault, by an intimate in the year 1992–93); Plan to Aid Battered Women Unveiled; Victims Will Find It Easier to Change Social Security Numbers, T HE WASH . POST , Nov. 5, 1998, at A12 (stating 1 million American women, according to federal statistics, are victims of nonfatal domestic violence from an intimate).

140.See Bureau of Justice Special Report, supra note 139 (pointing out that 28 percent of all annual violence against women is perpetrated by intimates).

141.See Bureau of Justice Special Report, supra note 139 (noting that nearly one in three adult American women will experience at least one physical assault by a partner during adulthood). See generally Plan to Aid Battered Women Unveiled, supra note 139, at A12 (stating that a large percentage of women experience physical abuse at some point in their lives).

142.See Holy Qur’an (Al Nisa) 4:35 (proclaiming that “[i]f you fear a breach between the two (husband and wife), appoint an arbiter from his people and another from hers. If they desire amendment, Allah will make them of one mind”); Dr. Behishti & Dr. Bahonar, Divorce or Dissolution of Marriage (stating that it is in the eyes of Islam that divorce is “undesirable on principle”), available at http://www.fabonline.com/Articles/ISLAMzDivorceal- Talaq.htm (last visited Mar. 18, 2003); see also Jamaat-e-Islami Pakistan, Islamic Laws Regarding Divorce (clarify- ing that when conflicts arise between a husband and wife, attempts should be made to rehabilitate the relation- ship), available at http://www.jamaat.org/islam/divorce.html (last visited Mar. 18, 2003). 90New York International Law Review[Vol. 16 No. 2 “Physical correction” means beating without hurting, breaking a bone, leaving black or blue marks, and avoiding the face at any cost. 143 It is reported by Ibn Abbas, one of the leading scholars of early Muslims, that beating means “hitting only with the siwak, the natural wooden root that is used for brushing the teeth, and only in strict privacy.” 144 This type of “beating” is similar to the “rule of thumb” beating that was used in early America.

The Prophet Mohammed, in his last sermon at Arafat, where Muslim pilgrims gather to perform the haj, condemned wife-beating. 145 In contradiction of the Holy Qur’an, in Turkey, women were in a state of furor when the Muslim Handbook, published with government funding, advocated wife beating, “but to beat women gently as a warning, but to avoid hitting them in the face.” 146 An article in the Gulf News told of a judge who ruled in a wife-beating case in Dubai, in the Emirates, that wife-beat- ing was not a crime as long as no bones were broken or deformity caused. 147 A majority of Indian women believe that wife-beating is justified under certain circumstances: for neglecting the children and the house, for going out without informing the husband, for showing disre- 143.See Karim Al-Sheeha, supra note 37, at 93–94 (Mohammed Said Dabas trans., 1997) (stating that beating is the third and final remedy to treat a “disobedient wife); see also Holy Qur’an (Al Nisa) 4:34 (proclaiming that “[a]s to those women on whose part you see ill-conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (very lightly), but if they return to obedience, seek not against them means (of annoyance)”). But see Dr. Ahmad Shafaat, A Commentary on The Qur’an 4:34 (admitting that if a “husband beats a wife without respecting the limits set down by the Quran and Hadith, then she can take him to court and if ruled in favor has the right to apply the law of retaliation and beat the husband as he beat her”), available at http://www.themod- ernreligion.com/women/dv-4-34-shafaat.html (last visited Mar. 18, 2003).

144.See Karim Al-Sheeha, supra note 37, at 94 (noting that beating is not meant to be a form of humiliation or a form of forcing a woman to act in a certain way—that is why a siwak is used); Lehr-Lehnardt, supra note 132 (noting that the ta’al allows a husband to beat his wife “for no apparent reason”); see also Khan, supra note 5, at 79 (claiming that many Muslims use the concept of cultural relativism to legitimize their adherence to Shari’a law).

145.See Sunnah–Interview with Mohammed Mokhtar, Imam (cleric), Islamic Center of the South Plains, Lubbock, Tex. (June 16, 2002); IslamicWay.com, Rights Dictated by Nature, Rights of Both Spouses on Each Other (acknowl- edging that “wife beating anytime for any reason is never allowed in Islam”), available at http://sisters.islam- way.com/viewtopic.php?topic=4094&forum=5 (last visited on Mar. 17, 2003). But see Osama Abdallah, Wife Beating is not Allowed in Islam in Any Case (stating that the Prophet forbade beating on the face) (emphasis added), available at http://www.geocities.com/IslamAwareness/Wife/beating1.html (last visited on Mar. 18, 2003).

146.See Owen Bowcott, Wife-Beating Guide Causes Outrage, T HE GUARDIAN (London), Aug. 10, 2000, at 2 (admit- ting that in Turkey men may beat their wives as long as they avoid the face and “do not strike too hard”); Karim Al-Sheeha, supra note 37, at 94 (noting that the purpose of beating is not retaliation or hurting.). But see Dr.

Ahmad Shafaat, supra note 143 (stating that the “wife has no religious obligation to take the beating”).

147.See Karim Al-Sheeha, supra note 37, at 94 (asserting that beating a wife was not meant to be a means of hurting her physically). But see Fatimah Khaldoon, Quranic Perspective on Wife Beating and Abuse (reasoning that after a careful reading of 4:34 the text actually prohibits abuse and beating of women, but instead promotes psycholog- ical abuse), available at http://www.submission.org/women/beating.html (last visited Mar. 18, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law91 spect to in-laws, or for a suspicion of being unfaithful. 148 In Pakistan, 99 percent of housewives are subjected to violence in their homes. 149 Honor Killing under Islamic Law In many Arab and Asian cultures, a woman’s virginity and chastity bear great weight, and scrutiny is the key to her family’s honor. The need to guard that honor is so great that it has led to the brutal practice of honor killings across the Middle East and Pakistan. 150 Honor killing—the execution of women suspected of sexual improprieties—is often car- ried out by close family members in order to restore the honor tarnished by her behavior. 151 This behavior can consist of anything from adultery to minimal contact with men outside the family. A woman’s guilt is often assumed and her punishment is carried out on the basis of sus- picion alone. 152 The Holy Qur’an has abolished honor killing. 153 Surah al Nur abrogated any type of honor killing, and stated that if a woman is thought to have committed any type of lewdness, 148.See Majority of Indian Women Favor Certain Wife Beatings, Says Survey, D EUTSCHE PRESSE -AGENTUR , Nov. 17, 2000 (noting specifically that 37 percent of women accepted wife-beating in cases where wives went out without informing their husbands); Lehr-Lehnardt, supra note 132, at 412 (stating that in Egypt one-third of women do not seek the aid of police officers because they think that the integrity of the family is more important than the well-being of the woman). But see Alison E. Graves, Women In Iran: Obstacles to Human Rights and Possible Solu- tions, 5 A M. U. J. G ENDER & L. 57, 66 (1996) (noting that even with the eminent threats of bodily harm and death, many women of Iran persist at obtaining more liberal laws).

149.See Lehr-Lehnardt, supra note 132, at 411 (reiterating that spousal abuse, in contradiction of the Holy Qur’an, is a problem in some Muslim countries); see also Kamran Memom, Wife Abuse in the Muslim Community (stating that approximately “10 percent of Muslim women are abused emotionally, physically, and sexually by their Mus- lim husbands”), available at http://www.zawaj.com/articles/abuse_memon.html (last visited at Mar. 18, 2003).

150.See Women and Religious Oppression (noting that Muslim men “have the duty to protect female’s chastity.

Islamic teaching on the necessity to save female’s virginity and control women actually overlaps with the honor ethic, strengthening and structuring it”), available at http://www.eclipse.co.uk/women/oppression.htm (last vis- ited Mar. 18, 2003); see also Suzanne Ruggi, Middle East Report—Spring 1998, Commodifying Honor in Female Sexuality, Honor Killing in Palestine (stating that as family status is largely dependent upon its honor, which is mainly determined by the “respectability” of its daughters), available at http://www.merip.org/mer/mer206/ ruggi.htm (last visited Mar. 18, 2003).

151.See Honor Killing Demands Global Response, T HE MINN . D AILY , Jan. 29, 1999 (stating that honor killing occurs when a male relative decides to take the life of his female relative because she may have tarnished the family image); see also The Palestinian Human Rights Monitor, Honor Killing, Killing of Women on the Basis of Family Honor (affirming that honor killing has to do with the women alone, transgressions and the maintenance of the family honor), available at http://www.phrmg.org/monitor2002/Aug2002.htm (last visited Mar. 18, 2003).

152.See Hillary Mayell, Thousands of Women Killed for Family “Honor” (stating that as men are the owners of women they have a “right to decide their fate”), available at http://news.nationalgeographic.com/news/2002/02/ 0212_020212_honorkilling.html (last visited Mar. 19, 2003). Cf. Azza Basarudin, Whose Honor? Muslim Women and Crimes of Honor (revealing that the Qur’an stresses that “four witnesses must have witnessed the act of sexual intercourse taking place” before taking action) (emphasis in original), available at

153.See Holy Qur’an (Al Nisa) 4:15 (stating that if any of your women are “guilty of lewdness, confine them to houses until death do claim them”); see also Katheryn Christine Arnold, Are the Perpetrators of Honor Killings Get- ting Away with Murder? Article 340 of the Jordanian Penal Code Analyzed under the Convention on the Elimination of All Forms of Discrimination Against Women, 16 A M. U. I NT’L L. R EV. 1343, 1347–51 (2001) (discussing the struggles of upholding the Convention on the Elimination of All Forms of Discrimination Against Women in Jordan). 92New York International Law Review[Vol. 16 No. 2 including fornication or adultery, there must be four witnesses to prove the act. 154 If she has been pronounced guilty (and she is single), she can be flogged 100 times in public.155 If she is married, she can be publicly stoned. 156 (The same punishment goes for both sexes.) However, in contradiction of the Holy Qur’an, in Jordan, 25 murders per year—a quarter of the country’s homicides—are honor killings. 157 Pakistan documented 132 honor killings in the first quarter of 1999—in one region alone. 158 Injuries related to honor killings in Pakistan include setting the woman on fire by stove-burning. Close to 70 percent of all murders in Gaza and the West Bank are honor killings. 159 154.See Holy Qur’an (Al Nisa) 4:15 (noting that if those who launch a charge against a chaste woman are lying, they can be punished by 80 floggings); Basarudin, supra note 152 (reiterating that four witnesses must be available to prove the act).

155.See Holy Qur’an 24:2 (proclaiming that “the adulteress and the adulterer—punish each one of them with a hun- dred lashes; and may you not have pity on them in the religion to Allah, if you believe in Allah and the Last Day; and a group of believers must witness their punishment”); Sohaila Sharifi, Stoning in Iran, The Witch Burning of Modern Age! (admitting that stoning is an acceptable punishment for adultery for a married couple, but flogging is the punishment for unmarried couples involved in “unlawful sexual acts”), available at http://www.geoci- ties.com/stoning2001/english/sohaila.htm (last visited Mar. 19, 2003); see also Asghar Ali Engineer, Shari’ah Punishments (Hudud Laws) and Nation-States (arguing that the “[p]unishment of stoning to death for adultery has not been prescribed in the Holy Qur’an at all.” However the Prophet (PBUH) did prescribe 100 lashes for rape, fornication, and adultery), available at (last visited Mar. 19, 2003).

156.See Holy Qur’an (Al Nisa) 4:15, n.525 (proclaiming that “if any of your women are guilty of lewdness, take the evidence of four [reliable] witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some [other] way”); see also Ta r i k A b d u l - R a h m a n , Stoning in the Sunnah (recognizing that most scholars have agreed that stoning to death is the penalty for adultery while married), available at http://www.geocities.com/muthram/stoned.html (last visited Mar. 19, 2003); Sohaila Sharifi, supra note 155 (stating that stoning as a punishment has been recognized within the penal code of Iran).

157.See Honor Killing Demands Global Response, supra note 151 (examining the ancient custom of honor killing in Jordan); see also Arnold, supra note 153, at 1347 (stating that Jordan has the “highest rate of honor killing in the world”); The Palestinian Human Rights Monitor, Honor Killing, Killing of Women on the Basis of Family Honor (claiming that about 75 percent of honor killings in Jordan are committed by the brother), available at http:// www.phrmg.org/monitor2002/Aug2002.htm (last visited Mar. 19, 2003).

158.See Honor Killing Demands Global Response, supra note 151 (detailing the number of deaths in Pakistan in the first quarter of 1999); see also Lara Naaman, Is There Honor in Death?, A LICE MAGAZINE (announcing that Paki- stan documented 132 honor killings in the first quarter of 1999, but there could be more as these types of crimes are not usually documented), available at http://www.alicemagazine.com/features/2000_01/murder_honor.html (last visited Mar. 19, 2003); Prabhu Patel, Pakistan: Killing in the Name of Honor, T HE ASIA PAC. ADVOC ., (Summer 2000) (noting that even though “Pakistan ratified the United Nations Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) in March 1996, little progress has been made in the country to protect and promote women’s rights”), available at http://www.apcjp.org/pakistan.htm (last visited Mar. 19, 2003).

159.See Honor Killing Demands Global Response, supra note 151 (quoting the attorney general in the Palestinian National Authority); Ruggi, supra note 150 (noting that hundreds of women and girls are murdered in the Mid- dle East each year. Also, given that it is considered a private affair there are hardly any official statistics regarding its frequency); see also U.S. Department of State: International Information Programs, Democratic Practices Increasing in Some Parts of Middle East (realizing that honor killings continue to be a problem in the Middle East), available at http://usinfo.state.gov/regional/nea/text/0304menahr.htm (last visited Mar. 19, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law93 A 1999 Amnesty International Report regarding Pakistan gives instances in Pakistan in which men have accused mothers, wives, or sisters of adultery in order to inherit land or realty when the women are killed. 160 In other instances, a debtor will falsely accuse a female family member of adultery with the creditor in the hope that the accused man will excuse the loan in order to avoid repercussions.

161 In the Sanliurfa province of Turkey—where the price paid to a bride’s family can be as much as $40,000, provided she is deemed pure on her wedding night—one man ran over his daughter with a tractor after her husband returned her. The husband alleged that she was preg- nant with another man’s child. 162 Many have condemned honor killing, including the former Her Majesty Queen Noor of Jordan, who has publicly stated that “[t]his type of violence against women is not consistent with Islam.” 163 However, the United Nations Development Fund for Women reports that, of the 11 Arab nations that have signed the “Convention on the Elimination of All Forms of Dis- crimination Against Women,” no Arab state has formulated mechanisms to ensure its imple- mentation, particularly regarding honor killing, which is not permitted in Islam. 164 160.See Honor Killing Demands Global Response, supra note 151 (detailing how adultery may be used to facilitate the inheritance of land); see also Naaman, supra note 158 (noting that Amnesty International described these events as “‘commodificiation of women’ in poorer regions”); Amnesty International—USA, Pakistan: Violence Against Women in the Name of Honor, Reasons for the Increased Incidence of Honor Killings (discussing how the “economic decline has delayed education and democratization and increased the lure to exploit the honour system and kill women for the sake of compensation payment”), available at http://www.amnestyusa.org/countries/pakistan/ reports/honour/honour-9.html (last visited Mar. 20, 2003); Neshay Najam, Honour Killings in Pakistan (reiterat- ing that honor killings provide an “easy opportunity for the unscrupulous to make money . . .”), available at http://www.crescentlife.com/articles/honor-killings_in_pakistan.htm (last visited Mar. 19, 2003).

161.See Honor Killing Demands Global Response, supra note 151 (explaining how adultery may be used to discharge debts); see also Naaman, supra note 158 (noting that “debtor will falsely accuse a female family member of adul- tery with the creditor in the hope that the accused man will excuse the loan in order to avoid repercussions”); Najam, supra note 160 (stating that some men who are unable to repay loans would kill women of their own family to implicate someone in the debtor’s family and ensure that the loan is cancelled as compensation).

162.See Honor Killing Demands Global Response, supra note 151 (describing how women are ascribed responsibility in provoking and contributing to their own death in the context of honor killings). See generally Adrien Katherine Wing, Conceptualizing Violence: Present and Future Developments in International Law: Panel III: Sex and Sexual- ity: Violence and Culture in the New International Order: A Critical Race Feminist Conceptualization of Violence:

South African and Palestinian Women, 60 A LB. L. R EV. 943, 962 (1997) (estimating that “nearly all of the 107 women killed as suspected Israeli informers during the uprising [in Palestine] were in fact victims of honor kill- ings”).

163.See Naaman, supra note 158 (noting that the practice of honor killings is steadily losing its popularity); see also Honor Killing Demands Global Response, supra note 151 (arguing that honor killings must also be considered “within the cultural context [they] exist”).

164.See Wing, supra note 162, at 966–67 (concluding that CEDAW has weak enforcement mechanisms); see also Africa-at-Large; UN Women’s Rights Body Concludes Review of Reports, July 5, 2000 (finding that “CEDAW is the only UN human rights body dealing exclusively with women’s rights”); Naaman, supra note 158 (protesting the continuance of honor killings). 94New York International Law Review[Vol. 16 No. 2 Rights and Responsibilities of Man and Wife—Anglo-American Law Two centuries ago, Justice Blackstone wrote “the very being or legal existence of a woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.” 165 That is, the husband and wife were one person, and that person was the hus- band. 166 The “Married Women’s Property Acts” were intended to improve the married woman’s legal position. On their face, these acts approached equality, entitling husband and wife to their separate properties and their own earnings. However, the detail that was overlooked was that 100 years ago, the typical wife had no earnings. In consequence, so long as it remained the social norm that the husband was the sole or principal earner, wives continued with inferior marital rights. 167 Changed social conditions, specifically that 67 percent of married women were engaged in paid work by 1981, forced a separate concept. 168 Much later, the Equal Rights Amendment proposed “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” 169 Although the Equal Rights Amendment was not adopted, 18 states made changes in their state constitu- tions to guarantee gender neutrality. 170 However, as recently as 1973, a female New York judge 165.See Krause, supra note 45, at 96–97 (describing the attitude of Justice Blackstone towards married women).

166.See id. at 97 (noting that Justice Blackstone was of the opinion that during marriage, a woman did not possess a legal status); see also Appleton, supra note 132, at 191 (listing Blackstone’s articulation of the legal nonexistence of married women); Linda J. Lacey, Mimicking the Words, but Missing the Message: The Misuse of Cultural Femi- nist Themes in Religion and Family Law Jurisprudence, 35 B.C. L. R EV. 1, 21 (1993) (describing the development in family law by stating that “husband and wife are no longer ‘one’”).

167.See Krause, supra note 45, at 48 (describing the nature of marriage and marital contracts); see also Richard H.

Chused, Married Women’s Property Law: 1800–1850, 71 G EO. L.J. 1359, 1400 (1983) (arguing that, despite the laws, judicial hostility prevented women from controlling their own property); Sandra L. Rierson, Race and Gen- der Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment, 1 D UKE J. G ENDER L. & P OL’Y 89, 101 (1994) (observing that the passage of “various married women’s property laws did not guar- antee civil rights to all citizens”).

168.See Krause, supra note 45, at 105 (stating that “the legal support obligation [for example, now] is mutual”); Twila L. Perry, Caretakers, Entitlement, and Diversity, 8 A M. U. J. G ENDER SOC. POL’Y & L. 153, 158 n.29 (2000) (finding the need for new concepts because, “in 1997, 67.9% of single women and 61.6% of married women were in the workforce”); Ellen Rosen, The Future of the Fact, 560 A NNALS 221, 222 (1998) (describing that women’s self-definition includes responsibility for paid work and care for home and children).

169.See Krause, supra note 45, at 108 (explaining that state alimony statutes must be gender-neutral). See generally Wolfgang P. Hirczy de Mino, Does an Equal Rights Amendment Make a Difference?, 60 A LB. L. R EV. 1581, 1581 (1997) (examining the failure to ratify the equal rights amendment and its repercussions); Nancy G. Maxwell, Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison, 18 A RIZ . J. I NT’L & C OMP . LAW 141, 180 (2001) (specifying a gender-equality provision in the Hawaii Constitution).

170.See A LASKA CONST . art I, § 3; C OLO . CONST . art II, § 29; C ONN . CONST . art I, § 20; F LA. CONST . art I, § 2; H AW. CONST . pt. I, § 3; I LL. CONST . art I, § 18; I OWA CONST . art I, § 1; M D. CONST ., Decl. of Rights, art 46; M ASS . CONST . pt. I, art. I; M ONT . CONST . art. II, § 4; N.H. C ONST . pt. 1, art. II; N.M. C ONST . art. II, § 18; P A. CONST . art. I, § 28; T EX. CONST . art. I, § 3a; U TAH CONST . art. IV, § 1; V A. CONST . art. I, § 11; W ASH .

C ONST . art. XXXI, § 1; W YO. CONST . art. I, §§ 2, 3, art IV., § 1. Two additional states, California and Louisi- ana, have constitutional gender-equity guarantees of more limited scope; see also Herma Hill Kay, An Appraisal of California’s No-Fault Divorce Law, 75 C AL. L. R EV. 291, 302 (1987) (stating that California amended its state constitution in 1972); Paul Stam, The End of the North Carolina Abortion Fund, 22 C AMPBELL L. R EV. 119, 135 (1999) (describing an abortion case where the “New Mexico Supreme Court relied on the New Mexico Equal Rights amendment”). Summer 2003] Comparing Islamic Law and Anglo-American Law95 held that the male’s legal duty to provide for his family requires longer training and preparation than the woman’s marital role. 171 In the American marriage, the prevailing custom is that the husband’s name becomes the family name, and traditional law requires the husband to support his wife irrespective of the wife’s own means, her own ability to support herself, or even her own earnings, which the Mar- ried Women’s Property Acts gave her. 172 The wife had no duty to support her husband, although many states imposed a conditional support duty on the wife if her husband were “in need.” 173 Today, either by statute or U.S. Supreme Court decisions requiring gender neutrality, an equal and mutual obligation of support applies. 174 Most husbands continue to be the principal “breadwinner,” but many couples think of themselves as equal breadwinners. 175 171.See Friedrich v. Katz, 341 N.Y.S.2d 932, 934 (1973) (arguing that the duty to provide for the family requires “males to be older and generally more suited to their duty before they may independently decide to marry”); Krause, supra note 45, at 81 (discussing the constitutionality of age requirements as a marriage requisite); Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. R EV. 1, 84 (1996) (proposing that “’[t]he Supreme Court has never hesitated to recognize sexbased differences’”) (quotations omit- ted).

172.See Krause, supra note 45, at 48 (noting that “in the late 1800’s, some of the legal disabilities imposed on women were eliminated by so-called “Married Women’s Property Acts”); Steven Mark Goldman, The Georgia Domestic Relations Long-Arm Statute: An Appraisal, 18 G A. L. R EV. 691, 708 n.89 (1984) (finding that a wife had no legal duty to support her husband); see also Jennifer Wriggins, Marriage Law and Family Law: Autonomy, Interdepen- dence, and Couples of the Same Gender, 41 B.C. L. R EV. 265, 281 (2000) (noting that “at common law and well into this century, the husband owed a duty of support to the wife as long as she lived with him, but she had no duty to support the husband [even if she could do so]”).

173.See Sally Burnett Sharp, Step By Step: The Development of the Distributive Consequences of Divorce in North Caro- lina, 76 N.C. L. R EV. 2017, 2032 n.67 (1998) (characterizing the ‘in need’ spouse as the dependent spouse); Laura Weinrib, Reconstructing Family: Constructive Trust at Relational Dissolution, 37 H ARV . C.R.-C.L. L. R EV.

207, 217 (2002) (describing the duty to pay alimony to the spouse who is in need); Wenona Y. Whitfield, Where the Wind Blows: Fee Shifting in Domestic Relations Cases, 14 F LA. ST. U. L. R EV. 811, 823 n.61 (1987) (finding no duty of the wife to support her husband “’even if she is wealthy and he is feeble and in need’”).

174.See Orr v. Orr, 440 U.S. 268, 283–84 (1979) (ordering Alabama to amend its alimony statutes to be gender-neu- tral); Krause, supra note 45, at 23 (stating that “the U.S. Supreme Court has held a state statute unconstitutional that imposed liability for alimony only on husbands”); see also Mechele Dickerson, To L o v e , H o n o r , a n d ( O h ! ) Pay: Should Spouses be Forced to Pay Each Other’s Debts?, 78 B.U. L. R EV. 961, 1011 n.243 (finding that the doc- trine of necessaries applies equally to husbands and wives).

175.See Martha Chamallas, Women and Part-Time Work: The Case for Pay Equity and Equal Class, 64 N.C. L. R EV.

709, 732 (1986) (claiming that a woman working part-time looses her status as primary or equal breadwinner); see also Symposium Unbending Gender: Why Family and Work Conflict and What to Do About It, 49 A M. U. L.

R EV. 901, 911 (2000) (finding that “men and women are relatively co-equal breadwinners”); David N. Hofstein et al., The Big Case: Issues in High Income/High Asset Cases: Equitable Distribution in Large Marital Estate Cases, 17 J. A M. ACAD . M ATRIMONIAL LAW. 307, 348 (2001) (proposing that “[t]he homemaker’s contributions are so significant in their own right that they equal the breadwinner’s contributions”). 96New York International Law Review[Vol. 16 No. 2 The obligation of support owed to the wife or child is enforceable civilly, as well as by means of criminal sanctions. 176 Judicial definition of the support obligation goes to “neces- saries,” but different things are deemed necessary for rich and poor. 177 Necessaries include food, shelter, and clothing, but depending on the judge’s own ideas and the parties’ circum- stances, have been held to include fur coats, gold watches, jewelry, or furniture. 178 If a husband fails to fulfill his duty of support, his wife is authorized to purchase what necessaries she or their child needs, on the husband’s credit, even against his directions. 179 Marital Property Under Anglo-American Law Today, there are separate property states and community property states. 180 In separate property states, the traditional rules seem to remain in effect during the marriage. That is, if the husband paid for the property, but title is taken jointly, it is presumed that the husband intended to make a gift to the wife. 181 The burden on disproving this presumption rests on the husband. 182 If, on the other hand, the wife furnished the money for property, there is a pre- sumption of ownership in favor of the wife. 183 Property ownership in an ongoing marriage usu- 176.See Sylvia Law, Access to Justice: The Social Responsibility of Lawyers: Families and Federalism, 4 W ASH . U. J. L. & P OL’Y 175, 190 n.71 (2000) (discussing Alaska’s implementation of criminal sanctions for failure to comply with support obligations); Mark Strasser, Some Observations About DOMA, Marriages, Civil Unions, and Domestic Pa r t n e r s h i p s, 30 C AP. U. L. R EV. 363, 372 n.55 (2002) (mentioning that 18 U.S.C. § 228 (2000) permits crimi- nal sanctions under certain circumstances); see also Annotated Legal Bibliography: Women’s Annotated Legal Bibli- ography, 5 C ARDOZO WOMEN ’S L.J. 249, 262 (1998) (“In 1992 Congress passed The Child Support Recovery Act (CSRA), imposing criminal sanctions on parents who willfully fail to pay their child support obligations when the child lives in another state”).

177.See Krause, supra note 45, at 105 (arguing that “[w]hat in any given case constitutes ‘necessaries’ varies with the obligated spouse’s financial status”); Susan Klebanoff, To Love and Obey 'Til Graduation Day—The Professional Degree In Light of the Uniform Marital Property Act, 34 A M. U. L. R EV. 839, 857 n.120 (1985) (finding that courts have wide discretion in what support obligation is sufficient: “Although courts have not articulated a pre- cise formula for determining an alimony award, they consider factors such as the husband's ability to pay, the wife’s needs, the fault of the parties, the ages and health of the parties, the duration of the marriage, the parties' standard of living, the parties' accumulated property and the couple's other financial obligations”); see also Survey of 2000–2001 Developments in Alabama Case Law, 53 A LA. L. R EV. 665, 710 (2002) (concluding, for example, that a court may award “more than 50% of a former service member's disposable military retirement pay as child support, alimony, and/or part of a division of marital property”).

178.See Belton v. Belton, 481 S.E.2d 174, 178 (S.C. Ct. App. 1997) (declining to award the husband’s pension as ali- mony payment); Klebanoff, supra note 177 (stating that “because a multitude of factors inure in such discretion- ary decisions, courts have wide latitude in awarding alimony”); TJAGSA Practice Notes: Legal Assistance Items, 1989 A RMY LAW. 41, 42 (1989) (advising that “judges have discretion in awarding child support and perhaps alimony”).

179.See generally Krause, supra note 45, at 95 (discussing the duty to support).

180.See generally Krause, supra note 45, at 100–01 (mentioning the difference between community and separate property states).

181.See Thomas M. Featherston, Jr. & Amy E. Douthitt, Changing the Rules by Agreement: The New Era in Character- ization, Management, and Liability of Marital Property, 49 B AYLOR L. R EV. 271, 277–88 (1997) (stating that the burden of proof lies on the party asserting separate property ownership).

182.See Deborah H. Bell, Equitable Distribution: Implementing the Marital Partnership Theory Through the Dual Clas- sification System, 67 M ISS. L.J. 115, 129 (1997) (stating that the burden of proof lies with the party wishing to class their property separately).

183.See generally Patrick N. Parkinson, Who Needs the Uniform Marital Property Act?, 55 U. C IN. L. R EV. 677, 715– 16 (1987) (stating that the burden of proof lies with the party seeking to class the property separately). Summer 2003] Comparing Islamic Law and Anglo-American Law97 ally is taken in the husband’s name. 184 In separate property states, property ownership in the ongoing marriage usually has no significant repercussions. Most states are equitable distribu- tion states, while nine states are community property states. 185 Community property states view all property acquired during the marriage, besides gifts or inheritances, as community property—where the property is equally owned between the husband and wife. 186 The remaining property is characterized as separate property that is not subject to division.187 The characterization of the property has importance not only in the case of a divorce, but also in the event of a conveyance or death of the owner. 188 In equitable distribution states, courts use factors to determine a fair and reasonable way to split the marital property (property acquired during the marriage). 189 For example in New Jersey, some, but not all, of the factors used, include the duration of the marriage, the income or property brought to the marriage by each party, the standard of living, the tax consequences, and the debts of the parties. 190 184.See Krause, supra note 45, at 101 (stating that property ownership within a marriage is usually done in the hus- band’s name); see also Bell, supra note 182, at 121 (suggesting that assets are often held in the husband’s name).

But see Kay, supra note 170, at 293–94 (implying that community property is usually held in the wife’s name).

185.See Free Advice (stating that most states are equitable distribution states, while less are community property states), available at http://family-law.freeadvice.com/divorce_ law/ 1community_property.htm (last visited Jan.

30, 2002); see also Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 A RIZ . ST. L.J. 773, 782–83 (1996) (implying that most states are equitable distribution states); Alicia Brokars Kelly, The Marital Partnership Pretense and Career Assets: The Ascendancy of Self Over Marital Community, 81 B.U.L. R EV. 59, 74 (2001) (stating that the majority of states are equitable distribution states).

186.See Kelly, supra note 185, at 69–70 (defining and discussing the operation of community property); Alicia Brokars Kelly, Sharing a Piece of the Future Post-Divorce: Toward a More Equitable Distribution of Professional Goodwill, 51 R UTGERS L. R EV. 569, 629–30 (1999) (stating that community property states at least presume that property should be divided equally between husband and wife).

187.See James R. Ratner, Community Property, Right of Survivorship, and Separate Property Contributions to Marital Assets: An Interplay, 41 A RIZ . L. R EV. 993, 994 (1999) (stating that separate and community property are treated differently); W. Michael Wiist, Trust Income: Separate or Community Property?, 51 B AYLOR L. R EV. 1149, 1150 (1999) (stating that community property is treated differently than separate property on divorce).

188.See Ratner, supra note 187, at 994 (stating that separate and community property are treated differently at death); Wiist, supra note 187, at 1151 (implying that community property is treated differently from separate property at death).

189.See Divorce Source (stating that in equitable distribution jurisdictions, courts use a number of factors to deter- mine how the assets should be divided), available at http://divorcesource.com/NJ/ARTICLES/oflanagan1.html (last visited Jan. 30, 2002); see also Suzanne Reynolds, The Relationship of Property Division and Alimony: The Division of Property to Address Need, 56 F ORDHAM L. R EV. 827, 847–48 (1988) (implying that courts use a num- ber of factors to divide property equally in equitable distribution jurisdictions); Michele Ann Higgins, Crews v.

Crews: Never Underestimate the Difference a Lifestyle Can Make, 23 W OMEN ’S RTS. L. R EP. 101, n.15 (2001) (list- ing some factors relevant to the division of marital property).

190.See Divorce Source, supra note 189 (discussing the factors considered in New Jersey for equitable distribution of marital property); see also Ellman, supra note 185, at 816–17 (discussing equitable distribution in New Jersey); Andrew J. Kyreakakis, Antenuptial Law in New Jersey, 24 S ETON HALL L. R EV. 254, 255 (1993) (discussing the role of equitable distribution in New Jersey). 98New York International Law Review[Vol. 16 No. 2 Rights and Responsibilities of Man and Wife—Islamic Law Most Muslims live in a patrilineal society—that is, the child takes and inherits from the father—as do 90 percent of societies in the world. 191 Middle Eastern societies place more emphasis on the needs of the group, as opposed to American society, which places more emphasis on the individual. 192 Honor of the family, including loyalty to the family, is of major importance. 193 The husband’s role involves the moral principle that it is his solemn duty to treat his wife with kindness, honor and patience, and without harm or grief. 194 In fact, the best of believers are those who are good to their wives. 195 The wife has an undeniable right to food, lodging, clothing, and general care. 196 She also has a duty to contribute to the happiness and success of the marriage as much as possible. 197 Piety of the husband, and of the wife, is an admirable human characteristic. 198 191.See Mary F. Radford, The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. I NT’L & C OMP . L.

R EV. 135, 163–65 (2000) (stating that Islamic inheritance law is patrilineal); Chaudhry, supra note 4, at 531–32 (stating that the father is favored in Islamic intestacy laws).

192.See Chaudhry, supra note 4, at 527–30 (showing the focus on the family as a group, as opposed to the individual, in Islamic law); Radford, supra note 191, at 164–65 (showing that the focus is on the family group, rather than on the individual, in Islamic law).

193.See L OCKE , supra note 5, at 220 (stating that family is important in Islamic relationships); see also Nooria Faizi, Domestic Violence in the Muslim Community, 10 T EX J. W OMEN & L. 209, 212 (2001) (stating that the family is a very important aspect of Muslim life); Schooley, supra note 83, at 666 (stating that importance of the family is among the fundamental tenets of Islam).

194.See Holy Qur’an (Al Nisa) 4:19; Abdalati, supra note 37, at 117 (stating that there is a duty of the husband to treat the wife well in Islamic marital relationships); see also Fa i zi, supra note 193, at 215 (stating that women have the right to be treated with kindness).

195.See L OCKE , supra note 5, at 220 (stating that the best believers are good to their wives); see also Pur va Desphande, The Role of Women in Two Islamic Fundamentalist Countries: Afghanistan and Saudi Arabia, 22 W OMEN ’S RTS. L.

R EP. 193, 195 (2001) (stating that Mohammed believed that mothers [and by inference, wives] play an impor- tant role and should be respected); Faizi, supra note 193, at 216 (stressing the importance of the husband treating the wife with kindness).

196.See Holy Qur’an (Al Furqan) 25:74 (stating that wives in Islamic relationships have certain undeniable rights); see also Fa izi , supra note 193, at 212 (stating that a husband should care and provide for his wife); Schooley, supra note 83, at 671 (stating that a husband has a duty to maintain and provide for the welfare of his wife in Islamic cultures).

197.See Holy Qur’an (Al Furqan) 25:74 (stating that a wife has a duty to contribute to the success and happiness of the Islamic marriage); see also Berger, supra note 85, at 577 (stating that a wife is obligated to further the happi- ness of the husband and therefore the marriage in Islamic culture); Faizi, supra note 193, at 212 (stating that the women owes certain duties to benefit the marriage).

198.See L OCKE , supra note 5, at 220 (stating that piety is a good characteristic in an Islamic relationship); see also Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct?, 15 M ICH . J. I NT’L L. 307, 321 (1994) (stating that there is a duty to be pious in Islam); Schooley, supra note 83, at 660 (stressing the importance of piety in Islam). Summer 2003] Comparing Islamic Law and Anglo-American Law99 The man is the head of the household and has a degree of control over his woman. 199 This degree may be likened to what sociologists call “instrumental leadership” 200 or external author- ity in the household due to the division of labor and role differentiation. 201 This authority does not, however, mean any categorical discrimination or superiority of one sex over another. The husband has an obligation to treat his wife with equity, to respect her feelings, and to show her kindness and consideration. She is not to be subjected to suspense and uncertainty. 202 The hus- band must also treat his family and his wife’s family in a polite manner. 203 It is considered mod- est for a man or a woman who is not married to look down and away when speaking directly. 204 There is a verse in the Qur’an that says men are “qawwamuun” over women, meaning that they should take care of, be concerned about, worry about, and support women. 205 In this writer’s opinion, American society was like this 100 years ago, as far as dress, morality, and con- ventions were concerned.

Both the husband and the wife have the right to sexual pleasure. 206 199.See Holy Qur’an (Al Furqan) 25:74 (stating that the man is the head of the household in Islamic relationships); see also Faizi, supra note 193, at 214–15 (stating that the husband has a duty to provide and maintain the wife); Schooley, supra note 83, at 671–72 (stating that the wife owes the husband a duty of obedience).

200.See Abdalati, supra note 37, at 117 (stating that there is a division of authority in the household due to role dif- ferentation); see also Faizi, supra note 193, at 214–15 (stating that a division of labor exists in the Islamic house- hold); Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. I LL. L. R EV. 833, 858–59 (1997) (discussing the concept of “instrumental leadership”).

201.See Abdalati, supra note 37, at 117; Ghodsi, supra note 83, at 655 (commenting on role differentiation in Mus- lim marriages); see also Khaliq, supra note 11, at 13 (describing the role differentiation present in Islamic fami- lies).

202.See Azizah al-Hibri, Islam, Law, and Custom: Redefining Muslim Women’s Rights, 12 A M. U. J. I NT’L L. & P OL’Y 1, 29 (1997) (stating that men’s role as protectors of women entails giving them stability and certainty); Berger, supra note 85, at 577 (stating that the husband in an Islamic marriage has the duty to provide financial stability for his wife); see also Ghodsi, supra note 83, at 661 (describing the Islamic marriage as essentially a contract, which provides for certainty in the marriage for both parties).

203.See Michael R. Moodie, Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, 16 L OY L.A. I NT’L & C OMP . L.J. 9, 9 (1993) (stating that the basic obligations of Muslim children towards their parents are to treat them with kindness and respect); see also Rumage, supra note 80, at 36 (stating that the role of parents in finding marriage matches makes it more likely that children will maintain good rela- tions with their in-laws).

204.See Huda, Courtship in Islam (stating that Muslims should lower their gazes when looking at each other in order to guard their modesty), at http://islam.about.com/blcourtship.htm (last visited Mar. 17, 2003); Khaliq, supra note 11, at 20 (noting that modesty must be observed at all times between women and men outside their imme- diate familial relationship).

205.See Interview with Dr. Azziza Al-Hibri, The Role of Women in Islam, Religion and Ethics (2002); Blenkhorn, supra note 82, at 196 (stating that in Islamic marriages, the husband’s role is that of a protector); Ghodsi, supra note 83, at 655 (stating that it is believed in Islamic culture that men are more capable of protecting and financially providing for their families than women); see also Schooley, supra note 83, at 671 (describing the husband’s duty to his wife as proctective in nature).

206.See Abdalati, supra note 37, at 117; Blenkhorn, supra note 82, at 196 (stating that sexual urges are normal in a Muslim marriage); see also Adrien Katherine Wing, Custom, Religion, and Rights: The Future Legal Status of Pales- tinian Women, 35 H ARV . INT’L L.J. 149, 159 (1994) (describing sexual urges as acceptable in Islam). 100New York International Law Review[Vol. 16 No. 2 Dress—Anglo-American Law In the 1900s in early America, respectable women were covered from head to toe. 207 Today, under Anglo-American law, there are no dress codes. The law defines only the absence of dress. A typical example of a nudity law is found in Vernon’s Texas Penal Code Inde- cent Exposure: “It is a Class B Misdemeanor to expose anus or any part of genitals with intent to arouse or gratify the sexual desire of any person and is reckless about whether another is present who will be offended or alarmed by his act.” 208 Vernon’s Texas Penal Code § 43.25 provides that “nude” means “(4) a child who is (A) entirely unclothed, or (B) clothed in a manner that leaves uncovered or visible though less than fully opaque clothing any portion of the breasts below the top of the areola of the breasts, if the child is female, or any portion of the genitals or buttocks.” 209 Ironically, most states hold that breast-feeding is not indecent exposure and have stated so in their laws. 210 Dress Under Islamic Law A Muslim woman’s clothing must cover her entire body, except that which is apparent— the face and the hands. 211 Clothing should not be too tight or transparent, revealing what is 207.See Katherine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Wo r k p l a c e E q u a l i t y, 92 M ICH . L. R EV. 2541, 2547 (1994) (commenting on the way the women dressed in the 19th century); Miriam A. Cherry, Exercising the Right to Public Accommodations: The Debate Over Single-Sex Health Clubs, 52 M E. L. R EV. 97, 110 (2000) (describing how late 19th century dress tended to cover most of a woman’s body); see also Rachel F. Moran, Law and Emotion, Love and Hate, 11 J. C ONTEMP . LEGAL ISSUES 747, 753 (2001) (commenting on the subdued nature of women’s clothing in the late 19th century).

208.See 9 Tex. (Penal) Code Ann. § 21.08 (Vernon 2001).

209.See id. at § 43.251.

210.See Dora A. Corby, Review of Selected 1997 California Legislation: A Mother’s Right to Breast-Feed Her Child in Public—A New Personal Right in California, 29 M CGEORGE L. R EV. 447, 449 (1998) (stating that breast feeding has been found to be a constitutionally protected right); Durmeriss Cruver-Smith, Protecting Public Breast-Feed- ing, 19 W OMEN ’S RTS. L. R EP. 167, 173 (1998) (stating that there have generally not been laws against breast feeding); see also Gordon G. Wagget & Rega Richardson Waggett, Breast is Best: Legislation Supporting Breast- Feeding is an Absolute Bare Necessity—A Model Approach, 6 M D. J. C ONTEMP . L. I SSUES 71, 84 (1995) (stating that several states have passed legislation favoring breast-feeding).

211.See Yusuf Al Qaradawi, supra note 111, at 198; Graves, supra note 148, at 70 (stating that only a Muslim’s face and hands do not have to be covered); see also Khaliq, supra note 11, at 20 (quoting the Hadith, which proscribes uncovering any part of a woman’s body other than her hands and face). Summer 2003] Comparing Islamic Law and Anglo-American Law101 underneath. 212 She should not draw men’s attention to herself with perfume or jingling orna- ments. 213 And she should not wear clothes that are specifically for men. 214 Moreover, she should not be “too pleasant of speech to other men” besides her husband in order to incite other men. 215 A woman who perfumes herself and passes through a gathering is an adulteress. 216 The Veil and Robe In Islam, the Qur’anic verse that sanctions a barrier between men and women is called Surah al Ahzab, where the idea of the hijab or curtain was revealed: “Prophet enjoin your wives . . . daughters . . . to draw their garments . . . so that they may be recognized and not molested.” 217 The veils of the first women who wore them did not conceal, but rather announced the religious status of the women who wore these coverings, drawing attention to the fact that these women were Muslims and therefore were to be treated with respect. 218 In addition, the hijab also showed status, that is, a woman from a good family wore the hijab, while servant girls went outside of the home without a hijab. 219 The special Islamic dress worn by increasing numbers 212.See Yusuf Al Qaradawi, supra note 111, at 198; Desai, supra note 8, at 826 (describing a burqa as a tent-like, flowing garment which covers the face, in contradiction of Islam); see also Kristin J. Miller, Human Rights of Women in Iran: the Universalist Approach and the Relativist Response 10 E MORY INT’L L. R EV. 779, 802 (1996) (stating that Iranian women must cover up most of their bodies).

213.See Yusuf Al Qaradawi, supra note 111, at 198; Amir Brooks, Sisters’ Appearance (exhorting women not to draw attention to themselves with perfume or jewelry), available at http://www.bahagia.binternet.co.uk/sister.html (last visited Mar. 17, 2003); see also Mae Ghalwash, Nothing to Hide: More Women of Islamic Faith Opting to Wear Traditional Veils (stating that Muslim converts have given up perfume), available at http://www.chron.com/cs/ CDA/story.hts/special/sept11/1564701 (last visited Mar. 17, 2003).

214.See Yusuf Al Qaradawi, supra note 111, at 198; Brooks, supra note 213 (describing the clothing Muslim women are permitted to wear); see also Khaliq, supra note 11, at 20 (stating the appropriate dress for women).

215.See Holy Qur’an (Al Azhab) 33:32; Khaliq, supra note 11, at 20 (emphasizing the importance of modesty for a Muslim woman); see also Schooley, supra note 83, at 675 (describing the connection between a woman’s modesty and her family honor).

216.See Yusuf Al Qaradawi, supra note 111, at 198; Brooks, supra note 213 (exhorting women not to draw attention to themselves with perfume or jewelry); see also Ghalwash, supra note 213 (stating that Muslim converts have given up perfume).

217.See Joelle Enteris, International Human Rights: Islam’s Friend or Foe? Algeria as an Example of the Compatibility of International Human Rights Regarding Women’s Equality and Islamic Law, 20 F ORDHAM INT’L L.J. 1251, 1292 (1997) (explaining why a hajib is worn by Muslim women); see also Elizabeth W. Fernea & Robert A. Fernea, Symbolizing Roles: Behind the Veil, C ONFORMITY & C ONFLICT : R EADINGS IN CULTURAL ANTHROPOLOGY 235–36 (1986).

218.See Cynthia DeBula Baines, L’Affaire des Foulards—Discrimination, or the Price of a Secular Public Education Sys- tem?, 29 V AND . J. T RANSNAT ’L L. 303, 322 (1996) (stating that Muslim girls express their religion by wearing the hijab); Shauna Van Praagh, The Education of Religious Children: Families, Communities, and Constitutions, 47 B UFF . L. R EV. 1343, 1381 (1999) (stating that Muslim girls express their religious affiliation through the hijab); see also Fernea, supra note 217, at 236.

219.See Wing, supra note 206, at 154 (stating that middle- and upper-class women wore hijabs); Schooley, supra note 83, at 676 (explaining the symbolism of the veil for upper class and middle class women). 102New York International Law Review[Vol. 16 No. 2 of modern Muslims has much the same effect; stating that they want to be treated with respect. 220 With the resurgence of Islam in the last few years, the headscarf, or hijab, and the accom- panying robe/garments become a statement of difference between Islamic states and the West- ern world. 221 Interestingly enough, Moroccan women did not begin wearing the robe and veil until the French occupation in 1912. 222 The headscarf and robe are to guard an Islamic woman’s honor; they are her badge of honor. 223 The onus of modest behavior falls not only on women. The injunctions of the Holy Qur’an are directed to men and women alike: “Tell believers to avert their glances and to guard their private parts; that is purer for them. . . . Tell believing women to avert their glances and guard their private parts and not to display their charms . . . except to their husbands.” 224 In the last decade, there has been a movement away from wearing Western dress. The headscarf and robe are a form of “portable seclusion” that allows women to maintain a modest appearance that indicates respectability and religious piety. 225 Child Care—Anglo-American Law Congress, in an effort to balance the demands of the workplace with the needs of families and to promote the stability and economic security of families, enacted the Family and Medical Leave Act of 1993. 226 According to the Act, men and women have the legal right to 12 weeks of maternity leave from their place of employment to care for a newborn son or daughter. 227 220.See Lama Abu-Odeh, The Politics of Gender Identity: Post Colonial Feminism and the Veil: Considering the Differ- ence, 26 N EW ENG. L. R EV. 1527, 1552 (1992) (describing the desire of women who wear the veil to be treated with respect); Ghalwash, supra note 213 (quoting Muslim converts as saying they get more respect by wearing the veil).

221.See Brooks, supra note 213 (stating that the typical dress in a Muslim country is the veil).

222.See Ann Elizabeth Mayer, Conundrums in Constitutionalism: Islamic Monarchies in an Era of Transition, 1 UCLA J. I SLAMIC & N EAR E. L. 183, 188 (2002) (stating that France established a protectorate over Morocco in 1912); Joseph P. Murphy, La Pratique Marocaine du Droit des Traites (Essai sur le Droit Conventionnel Marocain), by Has- san Ouazzani Chahdi, 79 A M. J. I NT’L L. 237, 237 (1985) (stating that Morocco was a French protectorate from 1912–1956).

223.See Lama Abu-Odeh, supra note 220, at 1527 (describing how the veil represents a Muslim woman’s honor and commands respect); see also Schooley, supra note 83, at 675 (explaining that covering a woman with a veil in public maintains her and her family’s honor).

224.See B. A ISHA LEMU , W OMAN IN ISLAM 26 (1992); Holy Qur’an (Al Nur) 24:30-1.

225.See L EMU , supra note 224, at 239; Ghodsi, supra note 83, at 657 (describing the “seclusion” effected by wearing the veil); see also Holy Qur’an (Al Nur) 24:30-1.

226.See Family and Medical Leave Act of 1993, 29 U.S.C.A. § 2601 (stating the Congressional purposes behind enactment of FMLA).

227.See Family and Medical Leave Act of 1993, supra note 226 (stating that men and women have the right to leave to care for a newborn child); Donna Lenhoff & Claudia Withers, Implementation of the Family and Medical Leave Act: Toward the Family Friendly Workplace, 3 A M. U. J. G ENDER & L. 39, 40 (explaining that the FMLA grants leave to employees to care for newborn children); see also Carlton J. Snow, American Law in a Time of Global Interdependence: U.S. National Reports to the XVIth International Congress of Comparative Law: Section III Collec- tive Agreements and Individual Contracts Employment In Labor Law, 50 A M. J. C OMP . L. 319, 332 (2002) (stating that the FMLA ensures medical leave to parents caring for newborn children). Summer 2003] Comparing Islamic Law and Anglo-American Law103 The Act also applies if a person wants to adopt. 228 For an employee to be eligible for leave under the FMLA, the employee must have worked for his or her employer for at least 1,250 hours during the previous 12 months, and must have been employed at a work site where there are at least 50 or more employees within a 75-mile radius. 229 Before, and unfortunately after this act, American women were fired from their jobs for being pregnant, or for taking mater- nity leave despite the Fair Labor Practices Act, Title 7 of the Civil Rights Act, and/or the Equal Employment Opportunity Act. 230 Today, many young American women are not hired simply because they are of child-bearing age. 231 Child Care Under Islam Children are a bounty (gift) from Allah. 232 Moreover, the nature of having children pre- serves a man’s name and strengthens family bonds.233 The Holy Qur’an states that “mothers shall nurse their children for two whole years, for those parents who desire to complete the term of suckling . . . and the father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis.” 234 In other words, the husband is responsible for compensating the wife for breast-feeding. Mothers have been, and are, entitled to paid maternity leave from their employers in Muslim countries, in accordance with the Holy Qur’an which says, “Sacred are family relationships that arise through marriage and women bearing children.” 235 Motherhood and children are highly valued in the Islamic culture. In fact, a famous hadith, interpreting the Holy Qur’an, provides, “Paradise lies at the feet of mothers.” 236 228.See Cristina Duarte, The Family and Medical Leave Act of 1993: Paying the Price for an Imperfect Solution, 32 U. OF LOUISVILLE J. OF FAM. L. 833, 840 (1994) (explaining that the FMLA also applies to adoptive parents); Ari- elle Horman Grill, The Myth of Unpaid Family Leave: Can the United States Implement a Paid Leave Policy Based on the Swedish Model?, 17 C OMP . LAB. L. 373, 373 (1996) (relaying that the Act allows adoptive parents to take time off following the adoption of a child); see also William McDeavitt, Evaluating the Current Judicial Interpreta- tion of “Serious Health Condition” Under FMLA, 6 B.U. P UB. INT. L.J. 697, 702 (1997) (stating that the Act also applies to the parents of adopted children).

229.See Family and Medical Leave Act of 1993, supra note 226 (listing the requirements for employee eligibility under FMLA).

230.See generally Jane Rigler, Analysis and Understanding of the Family and Medical Leave Act of 1993, 45 C ASE W.

R ES. 457, 464 (1995) (explaining the eligibility requirements under FMLA).

231.See generally Snow, supra note 227, at 332 (stating the employee eligibility requirements under FMLA).

232.See Holy Qur’an (Al A’raf ), supra note 81, at 7:190.

233.See Holy Qur’an (Al A’raf ), supra note 81, at 7:190 (providing a translation of Surah 7, Verse 190 of the Holy Qur’an); S AYYID ABDUL A’ LA MAWDUDI , TOWARDS UNDERSTANDING THE QUR’AN, Vol. III SURAHS 7-9, p.

108, n.146, (translated and edited by Zafar Ishaq Ansari) (The Islamic Foundation 1990) (providing commen- tary on Chapter 7, Verse 190 of the Holy Qur’an and describing that passage as seeking to reaffirm that God holds absolute power over the entire process leading to man’s birth); H AZRAT MIRZA TAHIR AHMAD , THE HOLY QUR’AN, WITH ENGLISH TRANSLATION AND COMMENTARY 856, Vol. 2 (Islam International Publications Ltd.

1988) (commenting that Surah 7 (Al A’raf ), Verse 190 describes an object of marriage, namely that a man and a woman may be a source of comfort and solace to each other).

234.See Holy Qur’an (Al A’raf ), supra note 81, at 7:190 (providing a translation of Surah 7, Verse 190 of the Holy Qur’an).

235.See Interview with Mohammed Mokhtar, Imam (cleric), Islamic Center of the South Plains, Lubbock, Texas (June 16, 2002).

236.See L EMU , supra note 224, at 239. 104New York International Law Review[Vol. 16 No. 2 Mohammed said: “He whosever has three daughters and exercises patience with them, feeds them, clothes them according to his own income, will . . . be protected from the hellfire (will have a place in heaven).” 237 Abortion—U.S. Women in the U.S. have the right to abortion. 238 In the 1973 decision of Roe v. Wade, the U.S. Supreme Court held that the right of privacy recognized in the Fourteenth Amendment also encompasses the right to abort. 239 Since abortion is a fundamental right, regulating this right can only be justified by a compelling state interest. 240 The Supreme Court has decided that a state’s interest does not become “compelling” until the third trimester when the fetus is viable or able to live outside the mother’s womb. 241 Before the third trimester, the right to abort belongs to the woman. 242 In 1992, the state was given more latitude regulating abortion. The Supreme Court replaced the “compelling interest” test with the “undue burden test” and decided that a “compelling interest” test is no longer needed as long as a state regulation does not present a “substantial obstacle” to obtaining an abortion. 243 237.See Hadith as reported by Ahmad; L EMU , supra note 224, at 239.

238.See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (affirming the decision made in Roe v. Wade, which established that women in the U.S. have the right to an abortion); Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (intimating that the Constitution’s guarantees of fundamental individual liberty cov- ers a woman’s right to chose an abortion); see also Rust v. Sullivan, 500 U.S. 173, 201 (acknowledging that a woman has a right to choose an abortion, but stating that the government has no constitutional duty to fund an abortion merely because the right to an abortion is constitutionally protected).

239.See U.S. C ONST . amend. XIV, § 1 (stating that “nor shall any State deprive any person of life, liberty, or property, without due process of the law . . .”); Roe v. Wade, 410 U.S. 113, 113 (1973) (holding that abortion is a funda- mental right, guaranteed by the due process clause of Amendment XIV); see also Doe v. Bolton, 410 U.S. 179, 179 (1973) (striking down procedural requirements in a Georgia law that restricted a woman’s right to an abor- tion).

240.See Roe v. Wade, 410 U.S. at 155 (stating that “[w]here certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’”); Kramer v. Union Free Sch. Dist., 395 U.S. 621, 627 (1969) (proposing that when the Court reviews the denial of the fundamental right to vote, it must determine whether the denial is necessary to promote a compelling state interest); see also Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (explaining that any state law that hinders or penalizes the con- stitutional right to travel must be narrowly tailored to serve a compelling state interest).

241.See Roe v. Wade, 410 U.S. at 163–64 (describing that a state's compelling interest in potential life is at the point of viability); Casey, 505 U.S. at 846 (affirming the decision in Roe v. Wade and adhering to the rule that a state has a compelling interest and thus the power to prohibit abortions at the point of viability); see also City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416, 428 (1983) (discussing that a state has an important and legitimate interest in protecting the potentiality of human life throughout a woman’s pregnancy, however, this interest only becomes “compelling” at the point of viability).

242.See Roe v. Wade, 410 U.S. at 163 (intimating that the decision of the woman to abort can be made free from interference by the state, up to the point of viability); see also Casey, 505 U.S. at 871 (discussing a woman’s right to terminate her pregnancy before viability as the central and most important principle of Roe v. Wade and a rule of law that cannot be denounced); City of Akron, 462 U.S. at 430 (confirming that a woman has the right to choose an abortion up until the point at which a state develops a compelling interest to restrict it).

243.See Casey, 505 U.S. at 876 (stating that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability”); see also Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (following the decision in Casey and finding that a law designed to further the state's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability, is unconstitutional); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 519–20 (1990) (acknowledging the undue burden standard and finding that Ohio did not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion). Summer 2003] Comparing Islamic Law and Anglo-American Law105 The states’ laws regulating abortion vary. Forty states, including the District of Columbia, have enacted laws banning post-viability abortion. 244 Many states have banned mandatory waiting periods and certain types of abortions such as partial-birth abortions and dilation and extraction. 245 Four states have also set forth viability tests that must be performed by physi- cians. 246 Eighteen states have also applied parental consent and waiting period regulations for abortion.247 Thirty-eight states have laws that prevent a minor from having an abortion with- out parental consent or notice. 248 244.See Casey, 505 U.S. at 877 (stating that “subsequent to viability, the State in promoting its interest in the poten- tiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother”); see also Voinovich v.

Women's Med. Prof ’l Corp., 523 U.S. 1036, 1037 (1998) (Thomas, J., dissenting) (discussing that since the decision in Casey, over three-quarters of the states have in place statutes limiting the reasons for which abortions may be performed late in pregnancy); Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476, 499 (1983) (discussing the Court’s recognition in Roe v. Wade that a state's interests in preserving maternal health and protecting the potentiality of human life may justify regulation and even prohibition of post-viability abortions).

245.See Casey, 505 U.S. at 885 (describing mandatory waiting periods as reasonable measures by which states can implement their interests in protecting the life of an unborn child); see also Stenberg v. Carhart, 530 U.S. 914, 920–23 (2000) (holding that a Nebraska law banning partial birth abortions violated the Constitution); Hodg- son v. Minnesota, 497 U.S. 417, 448 (1990) (finding that a mandatory 48-hour waiting period would reason- ably further the legitimate state interest in ensuring that the abortion decision is knowing and intelligent). The following states have mandatory waiting periods: Delaware, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Montana, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Ten- nessee, and Utah.

246.See Casey, 505 U.S. at 872–73 (holding that a state may take steps to ensure that the choice to have an abortion is thoughtful and informed); Reproductive Health Serv. v. Webster, 851 F.2d 1071, 1074–75 (1988) (holding that a Missouri legislative requirement that doctors determine the fetus's gestational age, weight, and lung matu- rity as part of viability test was unconstitutional); see also Colautti v. Franklin, 439 U.S. 379, 390 (1979) (finding that the viability requirement of a Pennsylvania statute was void and unconstitutional because of vagueness). Ala- bama, Louisiana, Missouri, and Ohio have set forth that viability tests must be performed by a physician. The Louisiana law has been ruled unconstitutional; a state court has issued a preliminary injunction against the Ohio law.

247.See Casey, 505 U.S. at 899 (holding that a state may require parental consent for a minor seeking an abortion, provided there is an adequate judicial bypass procedure in place); Belotti v. Baird, 443 U.S. 622 (1979) (allowing a state the ability to require parental consent for unmarried minors’ abortions only if it created a bypass proce- dure where a minor could obtain an abortion by persuading a judge that it would be in her best interests, or that she is mature enough to decide for herself ); see also Ashcroft, 462 U.S. at 476 (upholding a parental consent pro- cedure that provided for a judicial bypass). The 18 states are: Delaware, Indiana, Idaho, Kansas, Kentucky, Loui- siana, Maine, Mississippi, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, and Utah.

248.See Casey, 505 U.S. at 895 (distinguishing spousal consent provisions from parental notification or consent requirements which were upheld by the court); see also Akron Ctr. for Reproductive Health, 497 U.S. at 519–20 (holding that an Ohio law which required that notice be given to at least one parent of an unmarried minor before an abortion could be performed was constitutional); H.L. v. Matheson, 450 U.S. 398, 400 (1981) (upholding a Utah law that required a physician “[n]otify, if possible, the parents or guardian of a woman upon whom the abortion is to be performed, if she is a minor”). The following states require parental notice: Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indi- ana, Iowa, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, and Wyoming. 106New York International Law Review[Vol. 16 No. 2 Although abortion has remained a controversy between pro-life activists and pro-choice activists, and has been substantially regulated by the states, the right to abort still remains a fundamental right held by every woman in the United States. Abortion Under Islam While Islam permits preventing pregnancy for valid reasons, it does not allow doing vio- lence to the pregnancy once it occurs. 249 Muslim jurists agree unanimously that after the fetus has been completely formed (at forty days), and has been given a soul, aborting it is haram, or forbidden. 250 Some scholars agree that it is haram to abort after the sperm and egg are com- bined in the first stages of existence. Abortion is also a crime, the commission of which is pro- hibited to the Muslim because it constitutes an offense against a complete, live human being. 251 However, there is one exception—if after the baby is completely formed, and the continu- ation of the pregnancy would result in the death of the mother, then in accordance with Sha- riah, in choosing the lesser of two evils, an abortion must be performed. 252 Adoption—U.S. The purpose of adoption—a legally created parent/child relationship—is to promote the welfare of the children, while serving the interests of the biological parents, adoptive parents, 249.See A L QARADAWI , supra note 111, at 201; Abortion in Islam (discussing the prohibition on abortion in Islam), available at http://salam.muslimsonline.com/~ig/islam/articles/abortion/right.htm (last visited Mar. 16, 2003); see also Khaliq, supra note 11, at 43 (discussing abortion in Islam and stating, “[m]odern jurists . . . have argued that to allow an abortion at any stage without there existing a threat to the life of the mother, amounts to a loss of faith in Allah's resources and is thus not permissible”).

250. Iman al Ghazzali said that “[t]he first stages of existence are the settling of the semen in the womb, and its mixing with the secretions (egg) of the woman. It is then ready to receive life. Disturbing it is a crime.” See A L QARADAWI , supra note 111, at 202; Khaliq, supra note 11, at 43 (discussing a woman’s right to an abortion and concluding that abortions are allowed in Shari'ah under certain circumstances, provided that the fetus has not developed beyond the 119th day of development); see also Sajeda Amin & Sara Hossain, Religious & Cultural Rights: Women’s Reproductive Rights and the Policies of Fundamentalism: A View From Bangladesh, 44 A M. U. L.

R EV. 1319, 1334 (1995) (discussing the juristic interpretation of the right to abortion and ensoulment of the fetus).

251.See Rumage, supra note 80, at 47 (discussing the position taken by Muslim jurists that “abortion and infanticide are not separate and distinct acts, but constitute stages of a crime against an already existing person, the gravity of which increases with the age and quality of personhood acquired by the fetus”); see also Anika Rahman, A View Towards Women’s Reproductive Rights Perspective on Selected Laws and Policies in Pakistan, 15 W HITTIER L. R EV.

981, 993 (1994) (stating that, in the minority view, “[t]he Islamic-derived criminal laws of Pakistan classify what we would regard as induced abortion as a crime, the punishment for which depends upon the developmental stage of the fetus”). See generally Mohamed Mekki Naciri, A Survey of Family Planning in Islamic Legislation, M USLIM ATTITUDES TOWARD FAMILY PLANNING 129–45 (Olivia Schiefflin ed., 1973) (discussing the view of Islamic scholars with regard to abortion).

252.See Rahman, supra note 251, at 994 (discussing Pakistani law which allows a narrow exception to criminality for abortions whose purpose is to save the life of the mother); Rumage, supra note 80, at 47 (stating that “most Mus- lim jurists believe that life begins at fertilization, and abortion is thus permitted only if the mother's life is severely compromised”); Khaliq, supra note 11, at 43 (describing the circumstance in which a woman is allowed an abortion as dictated by the Shari’ah). Summer 2003] Comparing Islamic Law and Anglo-American Law107 and the state. 253 U.S. adoption law is controlled by the individual states. The U.S. has attempted to promote uniformity in adoption statutes through the Uniform Adoption Act of 1994. 254 Since only six states have adopted a version of the Uniform Adoption Act, the laws among the states continue to vary considerably.

A brief look at the different provisions of the Uniform Adoption Act will present a good example of the areas covered by the different state adoption laws. The Act includes provisions concerning adoption of minors and adults; 255 the procedures for direct placement by a parent or guardian; 256 agency procedures and disclosures of all relevant information; 257 and the evalu- ation process. 258 The Uniform Adoption Act also includes general procedures for adoption, the required documents, and a home study, including fingerprints and child-abuse check for the prospective parents. 259 In addition, the Act covers adoption of a stepchild. 260 Many of the states have used the Uniform Adoption Act as a guide for their laws, but only Vermont has adopted it as law. 261 Although adoption laws vary from state to state, general provisions from Texas adoption law provide an example of U.S. adoption law. 262 Texas law allows for adoption of either a child or an adult. 263 Children may be placed for adoption only by a parent, legal guardian, or a licensed child-placing agency. 264 Placement by any other person is a Class B misdemeanor offense. 265 Texas law regulates agency procedures, including information disclosure and home screening.266 The effect of an adoption order from the court creates a parent-child relationship between the adoptive parents and the child, entitling the adopted child to “inherit from and through the child’s adoptive parents as though the child were the biological child of the par- 253.See Susan Frelich Appleton,“Planned Parenthood": Adoption, Assisted Reproduction, and the New Ideal Family, 1 W ASH . U. J. L. & P OL'Y 85, 92 (1999) (stating that “American adoption statutes [focus on] providing for the welfare of dependent children, with the ‘best interests of the child’ serving as the guiding principle”); see also Mis- hannock Robbins Arzt, In the Best Interests of the Child: The Uniform Adoption Act, 25 S TETSON L. R EV. 835, 841–42 (1996) (discussing the Uniform Adoption Act and its primary purpose, to promote the welfare of chil- dren); Jana B. Singer, The Privatization of Family Law, 1992 W IS. L. R EV. 1443, 1513 (1992) (stating that, “the primary purpose of twentieth century American adoption law was to promote the welfare of children potentially eligible for adoption”).

254.See Uniform Adoption Act (1994), available at http://www.webcom.com/kmc/adoption/law/uaa (last modified Dec. 22, 1997).

255.Id. at §§ 2-101, 5-101.

256.Id. at § 2-102.

257.Id. at §§ 2-106, 3-201–205.

258.Id. at §§ 3-601–603.

259.Id. at Article 3.

260.Id. at §§ 4-101–113.

261.See Vt. Stat. Ann. tit. 15, § 1-101 (2003); see also Carrie L. Wambaugh, Biology is Important, But Does Not Neces- sarily Always Constitute a "Family": A Brief Survey of the Uniform Adoption Act, 32 A KRON L. R EV. 791, 792 (1999) (discussing the Uniform Adoption Act and stating that “Vermont is one of the only states that has mod- eled its adoption laws in large part on the Uniform Adoption Act”).

262.See Tex. [Fam.] Code Ann § 162 (Vernon 2002).

263.Id. at. § 162.501.

264.Id. at § 162.602.

265.Id. at § 160.025.

266.Id. at § 107.052. 108New York International Law Review[Vol. 16 No. 2 ents.” 267 Although the adopted child is entitled to an inheritance right from the adoptive par- ents, the child still retains the right to inherit from the biological parents as well, unless a court provides otherwise. 268 A Texas court may not grant an adoption unless the child has resided with the prospective adoptive parent for no less than six months, but this requirement may be waived. 269 Adoption under Islam/Orphans The concept of adoption as we know it in the U.S. does not exist under Islam. In fact, it is haram, or forbidden, for a person who is not the natural parent to legally adopt a son or daugh- ter because adoption is a falsification of the natural order and of reality. 270 Taking a stranger into the family as one of its members and allowing him privacy with women who are not his muharrat, nor his heirs, is viewed as a deception because the man’s wife is not the adopted son’s mother, nor is his daughter the boy’s sister, nor is his sister the adopted son’s aunt—since all of them are non-mahrem to him. 271 Moreover, the adopted son acquires a claim on the inherit- ance of the man and his wife, thus depriving the rightful, deserving relatives of their inherit- ance. 272 As the Holy Qur’an states:

Nor has he made your adopted sons your (real) sons; that is simply a saying of your months. Call them (the orphans) by the names of their fathers; that is more just in the sight of Allah. But if you do not know their fathers they are your brothers in faith. 273 However, Islam stresses the concept of righteousness (birr) and “those who spend their wealth on their kin, for the needy, and for orphans . . . are the people of truth, the God- minded.” 274 Moreover, the Qur’an states that “those who feed, for the love of Allah, the indi- 267.See generally Vernon's Ann. Civ. St. art. 46a, § 9, overturned by Tex. Rev. Civ. Stat. Ann. art 46a, § 9 (Vernon 2001).

268.See Go Intern, Inc. v. Lewis, 601 S.W.2d 495, 495 (Texas 1980) (stating that an adopted child may claim an inheritance from a biological parent); Berkey v. United States, 361 F.2d 983, 983 (1966) (providing an example of an individual validly claiming the inheritance of a biological parent, even though they have been adopted by another).

269.See Tex. [Fam.] Code Ann § 162 (Vernon 2002). But see Hardy v. Wernette, 114 S.W.2d 951, 951 (Tex. 1938) (noting a case where children resided with relatives for six months and were denied adoption).

270.See A L QARADAWI , supra note 111, at 223 (stating how the Prophet (PBUH) was an orphan—his father died before he was born, and his mother died when he was very young; he was raised by his grandfather and his uncle); see also Legal “Adoption” in Jordan (explaining that adoption is not recognized within Islam), available at http://www.usembassy-amman.org.jo/cons/adoption.html (last visited Mar. 10, 2003). But see Imad-ad-Dean Ahmad, PhD., The Islamic View of Adoption and Caring for Homeless Children (stating that fostering is not pro- hibited), available at http://www.Islamfortoday.com/adoption.htm (last visited Mar. 10, 2003).

271.See Adoption (explaining that adopted men and orphans are not allowed to be alone with women in the home), available at http://www.angelfire.com/islamicview/adoption.html (last visited Mar. 10, 2003); Atika Ghaffar, Adoption in Islam (noting that adopted children are not allowed to be alone with the opposite sex), available at http://www.iica.org/invitation/adoption.html (last visited Mar. 10, 2003).

272.But see Adoption, supra note 271 (stating that “adopted” children may be permitted a portion of inheritance, but they are not entitled to as much as biological children, unless the “adoptive” parents desire otherwise); Ghaffar, supra note 271 (quoting from the Qur’an that “adopted” children are not entitled to inheritance from their “a d o p t i v e” p a re n t s ) .

273.See Ghaffar, supra note 271 (discussing the issue of inheritance in relation to an adopted child and explaining that they are not entitled to inheritance in order to avoid family arguments).

274.See Abdalati, supra note 37, at 25. Summer 2003] Comparing Islamic Law and Anglo-American Law109 gent, the orphan, and the captive . . . will be delivered from evil on the Day of Judgment, and will be rewarded in Jinna (Heaven) with . . . shades of the Garden . . . bunches of fruit . . . ves- sels of silver and goblets of crystal.” 275 In other words, the caretakers of orphans will find a great reward in Heaven. Thus, “kafalah”—when a man brings home an orphan to rear, to edu- cate, to treat as his own, to protect, and to love as his own, but not attributing the child to him- self, or giving the child rights—is authorized by Shariah, and is a meritorious act to be rewarded in Heaven.

In a famous hadith, narrated by Sahl bin Sa’d, the Prophet said, “I and the person who look after and orphan and provide for him, will be in paradise like this—putting his index and middle fingers together.” 276 The Prophet also said in another hadith, “The one who looks after a widow or a poor person is like a mujahid (fighter) who fights for Allah’s cause, or like the one who performs prayers all the night and fasts all the day.” 277 Thus taking an orphan into one’s home is highly regarded. Divorce Under Anglo-American Law Divorce, or the dissolution of marriage, is generally regulated by the states. 278 As a result, there are a variety of regulations. Many states have become more lenient in dissolving a mar- riage, and have enacted no-fault divorce statutes. 279 In the early 1900s, the states had “fault” grounds for divorce, including cruelty, adultery, abandonment, and conviction of a felony. 280 Later, other grounds were considered for fault grounds, including living apart without cohabi- tation for three years, and mental illness, which replaced insanity. 281 275.See Holy Qur’an (Al-Ihsan/Al-Dahr) 76.

276. Translation of the Meanings of Sahih Al-Bukhari, Vol. 8, #26 (Dr. Muhammed Muhsin Khan, trans., 1997).

277. Translation of the Meanings of Sahih Al-Bukhari, Vol. 8, #25 (Dr. Muhammed Muhsin Khan, trans., 1997).

278.See Mary Ann Glendon, The Transformation of Family Law: State, Law and Family in the United States and West- ern Europe, 1991 BYU L. R EV. 719, 733 n.32 (1991) (stating that divorce law is regulated by the states); see also Jeanne M. Tanner, Constitutionality of the Child Support Recovery Act in the Wake of United States v. Lopez, 5 G EO.

M ASON L. R EV. 267, 302 n.106 (1997) (listing that divorce is one of the areas of law that is left up to the state as opposed to the federal government); Edward Zebrowski, Government Regulation on Divorce (asserting that divorce law is governed by the state government), available at http://www.singerfoundation.org/Cur- rent%20Contests/Essay%20Contests%202001-2002/Regulation2001-2002/stjoes/edwardz.htm (last visited Mar. 12, 2003).

279.See 24 A M. JUR. 2D § 1 (2002) (permitting no-fault divorces to be considered an absolute divorce decree); 24 A M. JUR. 2D § 2 (2002) (stating that most states have adopted no-fault divorce statutes); 24 A M. JUR. 2D § 9 (2002) (citing that no-fault divorce statutes have been upheld in many states).

280.See Elizabeth Williams, Pre-Trial Dissolution Practice, 3 TFLLS 47, 47 (2003) (listing the possibilities for filing a divorce on fault grounds); Bradford, supra note 104, at 610 (citing grounds for fault divorce claims).

281.See Stanley Plesent, Overview of Matrimonial Law in the State of New York and the Role of Matrimonial Agree- ments, 62 P RAC . L. I NST . 11, 18 (1990) (showing the additional ways of filing for divorce on fault grounds); see also Jeannette C. Griffo, How Fault Remains a Factor in Property Division Upon Divorce: An Analysis of Equitable Distribution in Michigan After Sparks v. Sparks, 71 U. D ET. M ERCY L. R EV. 421, 426 (1994) (stating that until 1971 there were only a few claims one could use in order to obtain a divorce on fault grounds). 110New York International Law Review[Vol. 16 No. 2 In the 1970s, a movement to reform divorce laws swept the U.S., leading to the wide- spread adoption of no-fault divorce law. 282 In 1969, California became the first state in the U.S., and the Western world, to adopt a modern, purely no-fault divorce law when it passed the Family Leave Act of 1969, which became effective in 1970. 283 Between 1970 and 1975, more than half of the states adopted some modern no-fault grounds for divorce. 284 This abrupt and profound change in American divorce laws resulted from widespread dissatisfaction with the prior prevailing “marital fault” scheme of divorce law. 285 The California statute defined “irreconcilable breakdown” and called for a “dissolution of marriage” instead of an action for divorce. 286 Thus, the petitioner of the divorce need only show that he or she was unsupported without regard to any misconduct or fault on the part of the other party. 287 Today, all states, except for Arkansas, have adopted some sort of no-fault divorce statute, either as the sole ground for divorce, or as an addition to the traditional grounds for divorce. 288 Oregon grants divorce based on the sole ground of a no-fault provision, while New York, like Texas, grants divorce based on a no-fault provision, along with the traditional grounds. 289 When the states enacted the no-fault divorce laws, there was an expectation that no-fault divorce would reduce animosity, increase personal dignity, and enhance respect for the law and its institutions. 290 However, no-fault divorce has failed to achieve these purposes. Instead, no- 282.See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. R EV. 79 (1991); Matthew R.

Hall, From Contract to Covenant: Beyond the Law and Economics of the Family, 3 J. L. & F AM. 103, 109 (2001) (demonstrating the change in the 60s and 70s from fault divorce to no-fault divorce); Anita Vestal, Mediation and Parental Alienation Syndrome: Considerations for an Intervention Model, 37 F AM. & C ONCILIATION CTS.

R EV. 487, 487–88 (1999) (showing the trend in no-fault divorce claims that occurred in the 1970s).

283.See Charlene Wear Simmons, State Grounds for Divorce (describing the Family Leave Act passed in 1970), avail- able at http://www.library.ca.gov/crb/98/04/stateground.pdf (last visited Mar. 16, 2003); What is an Uncontested or No-Fault Divorce (explaining the no-fault divorce statutes adopted in California), available at http://www.self- divorce.com/uncontested.html (last visited Mar. 16, 2003).

284.See What is an Uncontested or No-Fault Divorce, supra note 283 (giving the history of divorce law); Legal Informa- tion Institute: Divorce an Overview (showing the shift to no-fault divorce law between 1970 and 1975), available at http://www.law.cornell.edu/topics/divorce.html (last visited Mar. 16, 2003).

285.See Wa r d l e , supra note 282, at 79; Ovvie Miller, California Divorce Reform After 25 Years (reasoning that the shift to no-fault divorce was a result of dissatisfaction regarding the marital fault scheme of divorce law), available at http://www.rmslaw.com/articles/art71.htm (last visited Mar. 16, 2003); see also Being a Family (defining marital fault), available at http://comitia3.uoregon.edu/~outlines/2nd3rdYr/famlawacree.rtf (last visited Mar. 16, 2003).

286.See Wa r d l e , supra note 282, at 79; Cal. Fam. Code § 310 (West 2003); Cal. Civ. Pro. Code § 395 (West 2003) (demonstrating that California’s no-fault divorce statute was created in 1969).

287.See Wa r d l e , supra note 282, at 79; Cal. Fam. Code § 310 (West 2003); see also Family Law Advisor Frequently Asked Questions (describing what is necessary in order to obtain a dissolution of a marriage), available at http:// www.divorcenet.com/ca/cafaq04.html (last visited Mar. 16, 2003).

288.See Wa r d l e , supra note 282, at 79; Ark. Code Ann. § 9-12-301 (Michie 2002) (stating that Arkansas is a state that requires fault grounds to be stated when filing for divorce).

289.See Wardle, supra note 282, at 79; Tables Summarizing the Law in the Fifty States: Chart Four Grounds for Divorce and Residency Requirements (giving a brief overview on which states have no-fault divorce statutes and which do not), available at http://www.abanet.org/family/familylaw/table4.html (last visited Mar. 16, 2003); see also N.Y.

Dom. Rel. Law § 170 (McKinney 2003).

290.See Wa r d l e , supra note 282, at 79; Scott Altman, Should Child Custody Rules Be Fair?, 35 U. L OUISVILLE J. F AM.

L. 325, 333 (1996) (demonstrating that the aim of no-fault divorce is to reduce psychological harm); Patricia A.

Harris, Intentional Infliction of Emotional Distress and Divorce: An Argument Against Joinder, 34 U. L OUISVILLE J.

F AM. L. 897, 907 (1995) (describing that no-fault divorce was created in order to reduce the bitterness that may prevail during divorce proceedings). Summer 2003] Comparing Islamic Law and Anglo-American Law111 fault divorce laws have been accompanied by increased rates of divorce and significant inequi- ties in the economic consequences of divorce, often referred to as the “feminization of pov- erty.” 291 In the U.S. today, one out of every two marriages ends in divorce, and 60 percent of sec- ond marriages fail. 292 Thus, according to the Stepfamily Foundation, 30 million children in the U.S. under the age of 13 are currently living with one biological parent. 293 Moreover, divorce in the U.S. will force five in ten women to take responsibility for their finances, and will lead many women into poverty. 294 According to the Journal of Financial Planning, the average divorced woman’s income is only $11,000, which is below the poverty level. 295 291.See Wa r d l e , supra note 282, at 79 (noting that no fault divorce laws have resulted in increased divorce rates and significant negative economic consequences for women); see also Rhona Bork, Taking Fault with New York's Fault-Based Divorce: Is the Law Constitutional?, 16 S T. JOHN ’S J. L EGAL COMMENT . 165, 194–97 (2002) (explaining a study of the effect of California’s no-fault divorce law, which concluded that it had negative eco- nomic consequences for women); Heather Flory, “I Promise to Love, Honor, Obey . . . And Not Divorce You": Cov- enant Marriage and the Backlash against No-Fault Divorce, 34 F AM. L.Q. 133, 138 (2000) (reporting that no-fault divorce has been criticized for rising divorce rates and the feminization of poverty, among other things).

292.See Brittany Jones, Family Affair, Daily Town Talk, Feb. 11, 2002, at 1D, available at http://www.law.cornell.edu/ topics/divorce.html (last visited Jan. 23, 2002); Center for Disease Control and Prevention, Births, Marriages, Divorces, and Deaths: Provisional Data for January—December 2000, N AT’L VITAL STATISTICS REPORTS , Vol.

49, No. 6 (Aug. 22, 2001) (reporting that the divorce rate for 2000 was 4.1 per 1,000 or 41%), available at http://www.cdc.gov/nchs/data/nvsr/nvsr49/nvsr49_06.pdf; see also Americans for Divorce Reform, The Divorce Rate (stating the current divorce statistics hover around 41% and positing that the statistics may change when the census uses more current population numbers), at http://www.divorcereform.org/rates.html (last visited Mar.

15, 2003); Peter T. Kilborn, Shifts in Families Reach a Plateau, Study Says, N.Y. T IMES , Nov. 27, 1996, at A18 (noting that the divorce rate has steadily climbed since the 1960s).

293.See Jones, supra note 292, at 1D; Stepfamily Foundation, The Statistics Are Staggering (reporting that approxi- mately 30 million children under the age of 13 live with one biological parent and that parent’s current partner), available at http://www.stepfamily.org/statistics.html (last visited Mar. 15, 2003); see also Ta m a r L e w i n , Differ- ences Found in Care with Stepmothers, N.Y. T IMES , Aug. 17, 2000, at A16 (remarking that half of all the nation’s children under the age of 18 live apart from at least one biological parent); The Future of Children, Epidemiology of Divorce: Living Arrangements of Children, C HILDREN AND DIVORCE (declaring that 37 million, or 57%, of U.S. children under the age of 18 live with single parents), available at http://www.futureofchildren.org/ information2827/information_show.htm?doc_id=75527 (last visited Mar. 16, 2003).

294.See Gail Marksjarvis, Brides, Know Your Finances, S T. PAUL PIONEER PRESS , June 18, 2002, at 1C (stating that five in ten women may become impoverished after divorce); see also Penelope E. Bryan, Reasking the Woman Question at Divorce, 75 C HI. KENT L. R EV. 713, 713–18 (2000) (discussing that the physical and psychological well-being of divorced women is negatively impacted when they face financial hardship); Penelope Eileen Bryan, Women’s Freedom to Contract at Divorce: A Mask for Contextual Coercion, 47 B UFF . L. R EV. 1153, 1156 (1999) (explaining that many women live in poverty after divorce).

295.See Marksjarvis, supra note 294, at 1C (citing that a divorced woman’s income is below the poverty level); see also Harriet Shaklee, Divorce and Children: What Hurts, What Helps? (noting that after a divorce, the mother and child normally receive half of the former family income although it costs more to raise a child in a one-parent household than in a two-parent household), at http://www.agls.uidaho.edu/ccc/CCC%20Families/Research/ divorce.htm (last visited Mar. 17, 2003). See generally Jim McKeever, 2000 Census: East Syracuse Is Splitsville— They Live Happily Ever After in Pompey, Says the Tally of Marriages, Divorces, P OST -STANDARD (Syracuse, NY), June 18, 2002, at A1 (reporting that after divorce many women become single parents and fall below the poverty level). 112New York International Law Review[Vol. 16 No. 2 Divorce Under Islamic Law Under Islamic Law, either the man, or the wife, has the right to divorce. 296 If either party does not feel secure or happy, and one spouse refuses to grant a divorce, a court can help the wronged party obtain a divorce. 297 The procedure for divorce in Islam is such as to encourage reconciliation wherever possi- ble.298 If the marriage is in trouble, four steps are recommended: (l) verbal advice or admoni- tion may be sufficient; (2) if not, sexual relations may be suspended; (3) if this is not sufficient, some slight physical correction may be administered, but Muslim scholars consider this inad- visable, though permissible; and all Muslim authorities are unanimous in deprecating any sort of cruelty, even nagging; and, if all else fails (4) family council is recommended, particularly arbitration with two arbitrators, one from her family, and one from his. 299 The Holy Qur’an lists the reasons for a “fault” divorce, including lack of obedience on the part of the wife, disloyalty of the wife, or ill-conduct (nushuz). 300 For lewdness (immorality)— fornication is punishable by flogging 100 times, and adultery is punishable by stoning to 296.See Blenkhorn, supra note 82, at 196–97 (stating that an Islamic woman may request a divorce if her husband refuses to have sexual relations with her); see also Sampak P. Garg, Law and Religion: The Divorce Systems of India, 6 T ULSA J. C OMP . & I NT'L L. 1, 10 (1998) (explaining that women have the same right as men in Islam to ini- tiate a divorce but in a limited form). But see Azizah al-Hibri, supra note 202, at 13 (noting that the husband has a right to divorce, but the wife also has a right to divorce him).

297.See J AMAL J. N ASIR , The Status of Women under Islamic Law 81 (1990) (discussing the dissolution of the mar- riage by a court for several reasons: injury or discord; a defect on the part of the husband; failure to pay mainte- nance; or absence or imprisonment of the husband without an acceptable excuse); see also Mahsa Aliaskari, U.S.

Asylum Law Applied to Battered Women Fleeing Islamic Countries, 8 A M. U. J. G ENDER SOC. POL’Y & L. 231, 261 (2000) (reporting that women in Islamic countries may obtain a divorce by court decree, but to do so, the woman must show grounds for the divorce). See generally Schooley, supra note 83, at 674 (explaining the grounds for a divorce in Islam by the wife).

298.See L EMU , supra note 224, at 21; see also Yusuf al-Qaradawi, The Lawful and Prohibited in Islam (indicating that the husband may reconcile with his wife during the iddat period), available at http://www.wponline.org/vil/ Books/Q_LP/ch3s5pre.htm#DIVORCE (last visited Mar. 17, 2003); Khaliq, supra note 11, at 37 (noting that reconciliation is the objective of the iddat period).

299.See Holy Qur’an, (Al Nisa) 4:44; Muhammed Zafrullah Khan, Islam and Human Rights 39 (1988) (explaining that divorce is spread over a certain amount of time during which reconciliation should be attempted and such reconciliation may entail the use of mediators or counselors, who may be family of either the husband or wife, or both); see also Tyseer Aboulnasr, Women and Islam (positing that only after an attempt at reconciliation by family members and a judge will a divorce be granted in Islam), available at http://www.islamfortoday.com/womencan- ada.htm (last visited Mar. 17, 2003).

300.See Holy Qur’an (Al Nur) 24:2-3; Michael R. Moodie, Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, 16 L OY. L.A. I NT’L & C OMP . L.J. 9, 12 (1993) (explaining that in the context of contraception, a wife’s disobedience or nushuz is grounds for divorce in an Islamic marriage); see also Shah Abdul Hannan, Social Laws in Islam (noting a Muslim wife’s nushuz or hatred of her husband, or attraction to another man, are grounds for a husband to refuse her maintenance), available at http://www.wponline.org/vil/books/sh%5Fsl/islamic %5Flaw%5Fregarding%5Fspouse.htm (last visited Mar. 17, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law113 death. 301 However, four witnesses must be produced. 302 Both the husband and the wife suffer the same punishment. 303 A man may also divorce his wife according to “talak telat,” meaning that he says “I divorce you three times.” 304 The first time, the husband says, “I divorce you.” Then the couple waits about a month, and tries to reconcile. Then the husband says for the second time, “I divorce you.” Then the couple again waits and tries to reconcile. Finally, the third time, the husband says, “I divorce you.” Now, the divorce is final. In this instance, the couple cannot remarry unless the former wife marries and divorces another man. 305 The wife can also divorce the husband if the husband is not providing for her, is disloyal, or for the same nushuz reasons, or if he has committed adultery. 306 The wife can also divorce the husband if she does not like him. 307 An instance was reported at the time of the Prophet when a woman came to him saying that although her hus- 301.See also Muhammed Zafrullah Khan, supra note 299, at 39 (comparing Islam to the U.N. Declaration of Human Rights and justifying flogging for adultery); Joseph Schacht, An Introduction to Islamic Law, 178–79 (1994) (explaining that the punishment for adultery is stoning to death for the adulterer and 100 lashes for those not in the marriage).

302.See R ODOLPHE J.A. D E SEIFE , THE SHAR ’IA: AN INTRODUCTION TO THE LAW OF ISLAM 68 (1993) (explain- ing that, unlike other crimes where two witnesses are required, adultery requires four witnesses and concluding that adultery is a difficult crime to prove); see also ReligiousTolerance.org, Punishment for Non-Marital Sex in Islam: Examples of Convictions under Sharia Law (illustrating a Nigerian case in which an allegation of adultery was dismissed because only three witnesses were offered), available at http://www.religioustolerance.org/ isl_adul1.htm (last visited Mar. 17, 2003); Women’s Rights in Islam, The Sharia and Women’s Rights (reporting that four witness are needed to prove an accusation of adultery against a spouse), available at http://www.csiw.org/ Islam09.htm (last visited Mar. 17, 2003).

303.See generally Women’s Rights in Islam, supra note 302 (briefly discussing the equality of the two sexes).

304.See L EMU , supra note 224, at 21–22; Khaliq, supra note 11, at 33–37 (discussing the various types of talaq and describing which form is most desirable and most repugnant). See generally Aliaskari, supra note 297, at 261 (noting that a Muslim husband can utter a talaq (say “I divorce you” three times over a period of time) and thereby repudiate his wife).

305.See N ASIR , supra note 297, at 77 (explaining that in a “major irrevocable repudiation” the husband can only remarry his former wife if she consummates a marriage with another man, dissolves that marriage and completes the iddat for that marriage); see also Cherry, supra note 86, at 322 (explaining that once a husband has divorced his wife he cannot remarry her until she has consummated another marriage to another man); Yusuf al- Qaradawi, supra note 298 (indicating that after the third utterance of talaq the divorce is final and the husband may not remarry the wife until she has consummated another marriage).

306.See L EMU , supra note 224, at 22; see also Azizah al-Hibri, supra note 202, at 12 (explaining that women may divorce their husbands for certain nushuz, such as domestic violence and lack of trustworthiness); Khaliq, supra note 11, at 36–37 (listing the grounds on which a wife can request a judicial divorce).

307.See Azizah al-Hibri, supra note 202, at 25 (stating that a woman who does not like her husband may leave him as long as she returns her mahr, or dowery); M AULANA SHEIKH MUBARAK AHMAD , Islam on Marital Rights 39 (explaining the case of Jamila, wife of Qais bin Thaabit, who was permitted to separate from her husband because she disliked him but was required to return her dower). 114New York International Law Review[Vol. 16 No. 2 band was a good man and she had no complaint against his treatment, she disliked him greatly and could not live with him. The Prophet (PBUH) directed that she should return to her hus- band a garden that he had given to her as a dowry, as the condition of her divorce. 308 This pro- cedure is sanctioned by the Qur’an where Allah says: “And if you fear that they may not be able to keep the limits of Allah, then there is no sin for either of them, if the woman redeems herself with that.” 309 If all else fails, then divorce is recommended. After the divorce takes place, there is a wait- ing period—normally three to twelve months—during which the divorcee is completely sup- ported and maintained by her former husband, and is to be treated with dignity. 310 One of the reasons for this waiting period is because she might be pregnant with her husband’s child. She cannot marry another man before the expiration of this period. She stays in her husband’s house until the divorce is final; there is no “separation” as in the U.S. When the waiting period expires, the divorcee is free to marry another man. 311 Modern developments in marriage law in England and other Western countries, such as the U.S., are leaning toward the Islamic pattern, in many ways, and are stressing guidance and counseling before divorce, privacy of divorce proceedings, and the acceleration of the process of divorce. 312 Divorce statistics are difficult to uncover in Islamic countries because divorce has a social stigma because of culture and tradition. 313 In 1998, in Singapore, more Muslim marriages ended in divorce: 1465 compared with 1212 in 1997, a 17 percent increase. 314 Between 1997 308.See Al-Sheeha supra note 37, at 79 (explaining that when the woman asks her husband for a divorce, it is called khula. This type of divorce is made at the insistence of the wife who must return the dowry to her divorced hus- band unless he does not want the dowry. A Muslim judge will look into the case if the husband refuses to accept, and the judge usually grants a divorce in favor of the woman); Azizah al-Hibri, supra note 202, at 25 (describing the story of the woman who approached the Prophet for a separation from her husband because she no longer liked him and in return for the separation, the Prophet required she return her dower to her husband).

309.See L EMU at 224; Holy Qur’an (al Baqarah) at 2:29.

310.See N.J. Coulson, A History of Islamic Law (1994) (noting another reason for the 3-month period was for an opportunity for reconciliation); N ASIR , supra note 297, at 104 (explaining the right of the wife to remain in the matrimonial home and the lack of her absolute right to maintenance under a variety of different situations).

311.See Yusuf al-Qaradawi, supra note 298 (indicating that the husband may reconcile with his wife during the iddat period); Schooley, supra note 83, at 673 (noting that the wife is not allowed to remarry during the iddat); see also N ASIR , supra note 297, at 103 (explaining that during the iddat, the husband is prohibited from remarrying and the wife is prohibited from remarrying).

312.See Kenneth J. Rigby, Alternative Dispute Resolution, 44 L A. L. R EV. 1725, 1740–41 (1984) (explaining that counseling and reconciliation services are a typical part of many countries’ divorce processes); see also Amy L.

Stewart, Covenant Marriage: Legislating Family Values, 32 I ND . L. R EV. 509, 530 (1999) (referring to Louisiana’s law that requires couples to seek counseling before a grant of a divorce).

313.See generally Rigby, supra note 312.

314.See Wendy Tan, Breaking Up Is Easy to Do: Marriage Is Hard Work and More Couples Are Throwing in the Towel, T HE STRAITS TIMES (Singapore), June 4, 2000 (stating that there was a 17 percent increase in divorces of Mus- lim couples between 1997 and 1998); see also Divorces Rise Over 100% in 10 Years, S INGAPORE STRAITS TIMES , Nov. 2, 1998 (noting that divorces between Muslims amounted to 1,212 for 1997). See generally Divorce Rate Continues to Climb, S INGAPORE STRAITS TIMES , Nov. 18, 1997 (noting that there were 1,088 divorces in Mus- lim marriages in 1996). Summer 2003] Comparing Islamic Law and Anglo-American Law115 and 1999 in Malaysia, 50,012 divorce cases involving couples were settled by Shariah courts. 315 In fact one out of four Malay marriages ends up in divorce, with adultery being cited as the main reason for marriage breakup. 316 In Morocco, according to women’s groups, many men pressure their wives for a khula, or divorce, because she has to pay money to him. 317 In 1997, in Lebanon, 5,000 divorce lawsuits were filed by women over a two-year period.318 Tunisia and Egypt (as of February 2000) now have “equal opportunity divorce.” 319 315.See Government Studying Impact of Extending Retirement Age, N EW STRAITS TIMES , Apr. 13, 2000, at 1 (noting that 50,012 divorce cases were reported between 1997 and 1999); see also 71 Per Cent of Muslim Divorce Cases Settled by Courts, M ALAYSIA GENERAL NEWS , Apr. 12, 2000 (reporting that between 1997 and 1999, 50,012 cases were registered with the Shariah courts). See generally S. Shankar, Mediation for Syariah Cases, N EW STRAIT TIMES (Malaysia), Sept. 14, 2001, at 8 (remarking that the Shariah cases hear Muslim divorce cases and the court has recently adopted a mediation procedure for divorces).

316.See Siti Andrianie, More Malay Women Seeking Divorce, T HE STRAITS TIMES (Singapore), Oct. 10, 1999, at 3 (stating that adultery is the main reason for divorce in Malaysia, and that one of four marriages ended in divorce); see also Brendan Preiera, Adultery a Leading Cause for Divorces Here, Say Counselors, T HE STRAITS TIMES (Singapore), July 6, 1992, at 16 (explaining that adultery is held to be the main cause for divorce by counselors, sociologists and lawyers).

317.See AFROL Gender Profiles: Morocco (reporting that Moroccan women often pay their husbands for a divorce), at http://www.afrol.com/Categories/Women/profiles/morocco_women.htm (last visited Mar. 23, 2003); see also Country Reports On Human Rights Practices for 1999: Morocco, W OMEN ’S INT’L NETWORK (WIN N EWS ), Vol.

26, No. 2, 34 (Apr. 30, 2000) (stating that Muslim women in Morocco often have no alternative but to offer their husbands money in return for his grant of a divorce and this type of divorce is called a khula); Moroccan Women’s Humans Rights Issues, T HE ISLAMIC INSTITUTE FOR HUMAN RIGHTS (explaining that a wife may pay her husband in order for him to agree to a divorce), available at http://www.iifhr.com/womens%20website/ Morocco.html (last visited Mar. 23, 2003).

318.See Lebanese Women Breach “Taboo” Subject of Wife-Beating, T ORONTO STAR , Aug. 2, 1997, at L15 (reporting that over 5,000 divorces were filed over two years); see also World Lebanese Organization, Lebanon Bulletin No.

36, Aug. 17, 1997 (explaining that 10% of the 5,000 divorces filed over the two-year period were the outcome of physical violence by husbands against their wives), available at http://www.wlo-usa.org/Bulletins/ bulletin36.htm.

319.See Susan Sachs, Egypt Makes It Easier for Women to Divorce Husbands, N.Y. T IMES , Mar. 1, 2000 (stating that equal opportunity divorce is a means available to Arab women in Egypt and Tunisisia to divorce their husbands); see also Howard Schneider, Women in Egypt Gain Broader Divorce Rights; Wide Coalition Pushed for Legal Equality, T HE WASH . POST , Apr. 14, 2000 (noting that only two countries in the Arab world allow a woman to divorce her husband); Egypt Expands Rights for Women in Divorce, T HE TIMES -PICAYUNE , Mar. 1, 2000 (reprinting a wire report with the news of Egypt’s expansion of women’s rights). 116New York International Law Review[Vol. 16 No. 2 Contradictory to the Holy Qur’an, Jordan’s legal system used to only allow men to file for divorce, but a new law, which became effective in 2000, gave women the same divorce rights as men.

320 Jordan also added amendments to the “Personal Status Law.” 321 Thus, divorce cases went up from 7,885 in 1999 to 8,241 in 2000. 322 Even with all of these statistics, this author estimates the divorce rate is about ten to twenty percent, far below the U.S. rate. Marital Property Under Islamic Law A wife is entitled to keep all of the property that she brought into the marriage. A husband may not take anything back of the dower that he has given to his wife if he decides to divorce her and seek another marriage. 323 If she divorces him, she can return the dowry, but is not obliged, unless she otherwise agrees.

If the wife leaves the marriage, it is unlawful for a man to mistreat his wife in such a fash- ion that imposes hardship, harassment, and burden on her. Nor should he attempt to force her to pay all she possesses as a ransom to her husband to release her in divorce. The Prophet instructed, “Do not harm yourself or others.” 324 Fathers retain custody of their children after divorce, unless otherwise arranged by the couple.325 Inheritance/Wills Under Anglo-American Law Generally in the United States a person’s authority to make a will is given to that individ- ual through the plenary power of the legislature. 326 Furthermore, an individual’s right to com- 320.See Abdul Rahman Al-Rashid, Grave But Quiet Controversies, M IDDLE EAST NEWS FILE, Feb 20, 2000 (remark- ing that now a woman can file for divorce in Jordan assuming she return her dowry); Jordan Woman Wins Right to Divorce, BBC N EWS , May 13, 2002 (noting that the Qur’an does not allow divorce, but some Arab countries are changing that practice); see also Jeanine Di Giovanni, The Avenger, T HE GUARDIAN (London), Feb. 27, 1999 (stating that before 2000 only men were allowed to divorce their wives, in contradiction of the Holy Qur’an).

321.See Shira Gutgold, Mideast Notes, T HE JERUSALEM POST , May 15, 2002 (noting that divorce has risen by 10% since the passing of the “Personal Status Law”); see also Susan Sachs, Force of Islam, A Woman’s Place, N.Y. T IMES , Dec. 17 2001 (establishing the enactment of the Personal Status Law and its effects on Jordanian women).

322.See generally The Arab Regional Center on Violence Against Women, available at http://www.amanjordan.org/ english/daily_news/wmview.php.ArtID=163 (last visited Jan. 23, 2002).

323.See Abdalati, supra note 37, at 115 (highlighting the situations where reparations commonly accompany divorce); see also the Holy Qur’an 4 (Al Baqarah) 2:237 (noting that women may keep the dowry unless they do not want it); Al-Rashid, supra note 320 (remarking that now a woman can file for divorce in Jordan assuming she return her dowry).

324.See Hadith as reported by Ibn Maja and Al-Darqutni; Yusuf al-Qaradawi, supra note 298.

325. See Bahrain Human Rights Practices, U.S. Department of State Dispatch, Mar. 1996 (stating that although women are granted child custody, the man still retains his right to make all decisions regarding the child’s life); see also Elaine Ganley, New Demand in Islam: Let Women Choose, C HI. TRIB ., Apr. 2, 1998 (stating that women are peti- tioning to regain custody after divorce).

326.See In re Estate of Mantalis, 671 N.E.2d 1061 (Ohio App. 1996) (holding that a person does not have the inher- ent right to dispose of his property through testacy); see also Kronauge v. Stoecklein, 33 Ohio App. 2d 229, 230 (1972) (noting that an Ohio statute grants the right to dispose of property postmortem); Ohio Rev. Code § 2107.33 (Nov. 1, 2002) (enumerating the provisions and codes of the bequeathing statute). Summer 2003] Comparing Islamic Law and Anglo-American Law117 pose a will is a statutory right, not a constitutional or natural right. 327 At common law, there existed no right of an individual to make or devise a will. 328 Thus, in a majority of jurisdic- tions, matters pertaining to wills are entirely statutory. 329 However, state legislatures are able to control the parameters of issues dealing with wills as long as the provisions are constitu- tional. 330 Currently, a will must meet five requirements to be considered valid. First, a will must be in writing to be enforceable. 331 In addition a will must be executed as prescribed by the statute of the state in which it will be executed. 332 A will must possess the intent of the individual mak- ing the will. 333 Also, the will must be able to take effect after the maker’s death. 334 Finally, the 327.See In re Estate of Mettel, 566 N.W.2d 863 (Iowa 1997) (holding that a person does not have the inherent right to dispose of his property through testacy); Iowa Code § 633.279(1), 2002 (exemplifying a state statute that allows a grantor to dole out property upon death); see also Kronauge, 33 Ohio App. 2d at 230 (noting that an Ohio statute grants the right to dispose of property postmortem).

328.See In re Estate of Mantalis, 671 N.E.2d (Ohio App. 1996) (stating that there was no right to inherit property at common law); In re Estate of Mettel, 566 N.W.2d 863 (Iowa 1997) (holding that a person does not have the right to dispose of his property until the state grants it); see also Kronauge, 33 Ohio App. 2d at 230 (noting that a statute grants the right to dispose of property).

329.See Ellexson v. Ellexson, 467 S.W.2d 515, 517 (Tex. Civ. App. 1971) (holding that a majority of jurisdictions make a will an entirely statutory matter); see also The First Nat’l Bank of Birmingham, v. Brown, 287 Ala. 240, 241 (1971) (stating that the contesting of a will is entirely statutory); Nesmith v. Vines, 248 Ala. 72, 73 (1946) (interpreting a will through the spectrum of the applicable state law of testacy).

330.See Eskra v. Morton, 524 F.2d 9, 12 (Wis. 1975) (standing for the proposition that a state can enact any statute regulating wills so long as it does not offend the Constitution); Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (exemplifying the institution of inequitable laws by a state actor and its effects on the public); Jimenez v. Wein- berger, 417 U.S. 628, 637 (1974) (holding that a death benefits statute did offend the equal protection clause of the Constitution).

331.See Gonzales v. Satrustegui, 870 P.2d 1188, 1189 (Ariz. App. 1993), holding that every will shall be in writing signed by the testator or in the testator's name by some other per- son in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

In re Estate of Peters, 107 N.J. 263, 265 (1987) (holding that the failure to conform with these five require- ments of a will cause the will to be invalid); Ariz. Rev. Stat. § 14-2502 (2002) (stating the required components of a will).

332.See In re Estate of Seinler, 490 N.W.2d 453, 455 (Neb. 1992) (holding that a will must conform with the state’s legislation); In re Estate of Peters, 107 N.J. at 264 (holding that the failure to conform with these five require- ments of a will cause the will to be invalid); Ariz. Rev. Stat. § 14-2502 (2002) (stating the required components of a will).

333.See Stevens v. Casdorph, 508 S.E.2d 610, 613 (W. Va. 1998) (stating that the individual who writes the will must have his intent expressed in his will in order for it to be valid); Black v. Maxwell, 131 W. Va. 247, 246 S.E.2d 804 (1948) (holding that the intent of the grantor must be expressed in the writing to be valid); Wade v.

Wade, 119 W. Va. 596, 195 S.E. 339, 442 (1938) (stating that a will must express the particular intent of the writer).

334.See Satrustegui, 870 P.2d at 1189 (holding that the will cannot take effect until the death of the writer); see also In re Estate of Peters, 107 N.J. at 266 (holding that the failure to conform any of the statutory provisions will termi- nate the will’s validity); Ariz. Rev. Stat. § 14-2502 (2002) (stating the required components of a will). 118New York International Law Review[Vol. 16 No. 2 will must be by its own nature ambulatory and revocable during the testator’s lifetime. 335 In other words, the testator retains the ability to alter his will as he sees fit while he is alive.

Rights contained in a will do not take effect until after the maker’s death and probate is accomplished. 336 Laws governing the wife’s rights to inheritance vary depending on whether the jurisdiction follows community property laws or equal distribution laws. In community property states, a husband cannot devise property in excess of his 50 percent ownership in the community property. 337 This serves to protect the wife’s interest in her portion of the commu- nity property.

All common law property states except Georgia have elected forced share statutes. 338 The forced elective share is a form of deferred community property where “one spouse does not receive a property interest in the other spouse’s property during marriage, but only at the other spouse’s death.” 339 Thus, a wife who survives her husband can renounce his will and choose to take a “statutory share, which is usually one-half or one-third of the husband’s property.” 340 A person who dies without a will dies intestate, and the state can take his property if he has not made prior arrangements. 341 However, all the states have intestacy laws which provide for distribution to legal heirs, thus property rarely escheats to the state. 342 335.See In re Estate of Worsham, 859 P.2d 1134, 1137 (Ariz. App. 1993) (stating that a will must be able to be revoked before the death of the grantor); see also in re Estate of Baxter, 798 P.2d 644, 646 (Okl. App. 1990) (holding that a will must be ambulatory in order to be valid); Dean v. Moore, 380 P.2d 934, 936 (Okl. 1962) (exemplifying a case where the will was not altered before death, but according to statute must have been allowed to be altered before death of writer).

336.See Giefer v. Swanton, 928 P.2d 906, 909 (Kan. App. 1996) (noting that the rights conferred by a will do not commence until the death of the grantor). See generally Hollenbeck v. Household Bank, 250 Kan. 747, 829 P.2d 903, 906 (1992) (stating that the inheritance written in grantor’s will was not final until probate had occurred); Harder v. Wagler, 17 Kan. App. 2d 403, 406 (1992) (holding that probate is necessary to validate a will).

337.See Llangehenning v. Hohmann, 163 S.W.2d 143, 145 (Tex. Civ. App. 1942) (stating that in community prop- erty states the property must be doled out equally upon divorce); Drinkard v. Hughes, 32 S.W.2d 935, 938 (Tex.

Civ. App. 1930) (holding that a man must dole out one half of his property upon divorce); see also McMurry v.

Stanley, 69 Tex. 227, 6 S.W. 412, 415 (1887) (exemplifying a case where community property was the rule in division of property).

338.See Stinson v. Sherman, 1965 OK 19, 19 (1965) (noting that Oklahoma also enforces the forced statutes); see also Scoby v. Sweatt, 28 Tex. 713, 713 (1866) (stating that Texas has forced share statutes in the state).

339.See Johnson v. Johnson, 317 N.C. 437, 443 (1986) (stating that North Carolina has deferred community prop- erty as a state law when dealing with wills); see also Gordon v. Gordon, 1984 Del. Fam. Ct. LEXIS 26, 28 (Del.

Fam. Ct. 1984) (noting that deferred community property means that a spouse does not have an interest in the property until the death of a spouse).

340.See J ESSE DUKEMINIER & J AMES E. K RIER , Property 395 (4th ed. 1998) (stating that a statutory share is usually one-half or one-third of a husband possessions).

341.See D UKEMINIER & K RIER , supra note 340, at 395 (stating that most states cease property when no rightful heir can be found after death); see also Tate v. Kennedy, 578 So. 2d 1079, 1085 (1991) (holding that a man did not have a will and under the laws of intestacy his nephew received the property); Hartford-Connecticut Trust v.

Lawrence, 106 Conn. 178, 182 (1927) (stating that an heir to a deceased can receive the grantor’s estate if the laws of intestacy allow so).

342.See Abdalati, supra note 37, at 187 (showing the difference between Anglo-American law and Muslim regarding intestacy); see also Tate v. Kennedy, 578 So. 2d at 1085 (showing that Alabama has laws of intestacy that apply whenever a deceased is without a will); Hartford-Connecticut Trust v. Lawrence, 106 Conn. at 182 (exemplify- ing a states intestacy statutes application). Summer 2003] Comparing Islamic Law and Anglo-American Law119 Inheritance—Islamic Law Under Qur’anic law, whether the woman is a wife or mother, a sister or daughter, she receives a certain share of the deceased kin’s property, a share that depends on her degree of rela- tionship to the deceased and the number of heirs. 343 Inheritance under Islam is very detailed and it would take an entire article to thoroughly explain the distribution. Surah 4 (Al Nisa) 2 says:

(If the husband dies) Allah charges you concerning (the provision for) your children: to the male the equivalent of the portion of two females, and if there be women more than two, then theirs is 2/3 of the inheritance, and there be one child (only) then the 1/2. And to his parents 1/6 of the inheritance if he has a son; and if he has no son, and his parents are his heirs, then to his mother the 1/3; and he has brethren, then to his mother the 1/2.

344 (If the wife dies) And unto you belongs a half of that which your wives leave, if they have no child; but if they have a child, then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, has been paid). And unto them belongs the half of that which you leave if you have no child, but if you have a child, then the 1/8 of that which you leave, after any legacy you may have bequeathed, or debt (you have contracted, has been paid). If a man or a woman has a distant heir (having left neither parent nor child), and he or she has a brother or a sister (only on the mother’s side) then to each of them (the brother and the sister) the 1/6, and if they are more than two, then they shall be sharers in the 1/2, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than 1/3 of the inheritance) has been paid. 345 All distribution takes place after debts—including funeral expenses—have been paid.

Generally, the male takes a share double that of a female, in his own category, because he has more duties and financial obligations. 346 However, this inheritance is offset by the fact that the female receives a dowry at the time of her marriage, and the fact that the man is required to fur- nish the house for marriage, and is required to take care of all the needs of the members of his 343. Holy Quran (Al Nisa) 4:11, 12.

344.See id.

345.See id.

346.See Berger, supra note 85, at 581 (stating that it is generally accepted under Islamic law and in Islamic policy that women inherit half of a male counterpart’s share); see also Jennifer Jewett, The Recommendations of the Interna- tional Conference on Populations and Development: The Possibility of the Empowerment of Women in Egypt, 29 C ORNELL INT’L L.J. 191, 202 (1996) (noting that under Islamic law a woman may only inherit one-half the share that a man would receive). But see Chaudhry, supra note 4, at 537 (suggesting that only in certain circum- stances do women under Islamic law of inheritance receive half the share of a male counterpart, but not because of gender discrimination). 120New York International Law Review[Vol. 16 No. 2 household. 347 Moreover, the wife is entitled to all living expenses in terms of accommodation, food, health care, child care, and all expenses. 348 With regard to the children’s inheritance, the sons receive a portion equal to that of two daughters. 349 Literacy—U.S. Today, in the United States, the literacy rate is 97 percent. 350 In 1992, alarming findings from the National Center for English as a Second Language indicated that 40 to 44 million adults could perform literacy tasks in English at only the lowest level of a five-point scale. 351 Moreover, 90 million people, about half of the entire U.S. adult population, could perform tasks only up to the second level. 352 Moreover, according to a report entitled Literacy in Rural 347.See Allison E. Graves, Women in Iran: Obstacles to Human Rights and Possible Solutions, 5 A M. U. J. G ENDER & L.

57, 60, 66–67 (1996) (acknowledging that in certain circumstances women are entitled to a dowry under Islamic-based Iranian law); see also Azizah al Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 A M. U. J. I NT’L L. & P OL’Y 1, 30–31 (1997) (interpreting a verse of the Qur’an to require a husband to care for and protect his wife both financially and intellectually); Martha C. Nussbaum, International Human Rights Law in Practice: India: Implementing Sex Equality Through Law, 2 C HI. J. I NT’L L. 35, 44 (2001) (noting that under Islamic law, upon marriage, a woman is entitled to a dowry to be paid to her by the husband).

348.See Berger, supra note 85, at 576–77 (detailing the duties of spouses under Islamic law as codified under Egyp- tian law); see also Lehr-Lehnardt, supra note 132, at 408–10 (reiterating that under Islamic law governing the marriage contract, the husband has responsibility to care for and provide the necessities of life for his wife; more- over, the wife is entitled to participate in the method or amount in which the support is given). But see Kathryn J. Webber, The Economic Future of Afghan Women: The Interaction Between Islamic Law and Muslim Culture, 18 U. P A. J. I NT’L ECON . L. 1049, 1063–64 (1997) (examining a wife’s right to maintenance or support from her husband under Islamic law).

349.See Holy Qur’an (al Nisa) 4:11-12 (announcing the Islamic inheritance system which identifies those able to inherit and the shares that each relative may receive); see also Chaudhry, supra note 4, at 531–32 (outlining the inheritance rules under Islamic law which state that a daughter’s inheritance share is half that of her male coun- terpart’s share). See generally Kathryn J. Webber, The Economic Future of Afghan Women: The Interaction Between Islamic Law and Muslim Culture, 18 U. P A. J. I NT’L ECON . L. 1049, 1060–61 (1997) (explaining the standing of women to inherit under Islamic law).

350.See Don Melvin, Backgrounder: Jordanians Could Feel Trade Squeeze in War, A TLANTA J. & C ONST ., Jan. 5, 2003, at 5B (stating that, in 2003, the United States literacy rate was 97 percent); see also Maria Sacchetti, Mexi- can Culture Classes Taught by the Experts, O RANGE COUNTY REG., Aug. 1, 2001 (indicating that the literacy rate is approximately 97 percent), available at LEXIS, News Library, News Group File, All; Laura Hobbs, Ball State U. Students Say They Lack Time for Entertainment, U. N EWSWIRE , Oct. 2, 2002 (noting that according to the United States Central Intelligence Agency World Factbook for 2002, the United States literacy rate is 97 per- cent), available at LEXIS, News Group File, All.

351.See Te r r e n c e G . W i l e y, Estimating Literacy in the Multilingual United States: Issues and Concerns, ERIC D IGEST , Sept. 1994 (assessing the literacy of the various populations living in the United States, specifically stating that 40 to 44 million native English speakers can read at the lowest calculated level), available at http://www.cal.org/ ncle/DIGESTS/WILEY.HTM (last visited Mar. 17, 2002); see also Elizabeth M. Daley, Defining Literacy in the 21st Century, L.A. B US. J., Nov. 26, 2001, at 38 (explaining that according to the 1992 National Adult Literacy Survey, 44 million American adults could only accomplish tasks at the lowest level of the five-level scale used in the survey); James R. Langford, Partnership Focuses on Literacy, F LA. TODAY , May 7, 2002, at 1 (examining the various literacy levels and indicating the adult United States population that fall into each level).

352.See Te r r e n c e G . W i l e y, supra note 351 (stating that approximately half of the adult United States population could only accomplish tasks that are included at the two lowest levels of literacy utilized in the study); see also Jenny Sewell, Health Care 101: A New Survey Finds Growing Awareness of the Need for Health Literacy Initiatives; State Trends, S T. G OV’T NEWS , Nov. 1, 2002, at 20 (reiterating that about half the adult population in the United States has marginal reading skills). See generally Linda Seeback, U.S. Literacy Rates Are Lower Than You Thought, R OCKY MOUNTAIN NEWS , Feb. 23, 2002, at 4W (acknowledging that approximately half of all adults in the United States could only read at the two lower levels posited by the 1992 National Adult Literacy Survey). Summer 2003] Comparing Islamic Law and Anglo-American Law121 America: A Study of Current Needs and Practices, rural residents make up 28 percent of the U.S. population, but account for 44 percent of the functionally illiterate. 353 A study conducted by the U.S. Department of Education found that half of the adult population in the U.S. does not perform at the most basic level of reading ability. 354 Literacy—Muslim Women Prophet Mohammed, who carried the message of Islam, was illiterate. 355 The first divine word revealed to the Prophet was the imperative, “Iqra” or “Read.” 356 The rest of the Holy Qur’an is full of verses that emphasize the importance of the pursuit of knowledge. In fact, the Holy Qur’an emphasizes the importance of knowledge: “God elevates by several degrees those who have knowledge.” 357 The Prophet emphasized the importance of knowledge and educa- tion. His statements (the hadith) related, “The pursuit of knowledge is the duty of every Mus- lim,” and “Pursue knowledge even if you have to go as far as China.” 358 353.See Anne Beyers, National Adult Literacy Survey Overlooks Rural Illiteracy, R URAL ADULT EDUC . F., Dec. 1993 (highlighting the fact that rural United States residents comprise only 28 percent of the population but among these rural residents, 44 percent are illiterate), available at http://www-personal.ksu.edu/rcled/ publications/liter- acy/nals.html (last visited Mar. 16, 2003); see also Clearinghouse Report Focuses on Literacy in Rural America, Feb./ Mar. 1993, R URAL ADULT EDUC . F. (commenting that almost half of the United States rural population is func- tionally illiterate), available at http://www.personal.ksu.edu/~rcled/publications/literacy/litpub.html (last visited Mar. 28, 2003). See generally Shasi Tharoor, Letter From America: Illiterate America, N EWSWEEK , Sept. 30, 2000, at 72 (stating that illiteracy is predominantly a problem in rural areas in the United States).

354.See U.S. D EPT . O F EDUC . O FF. EDUC . RES. & I MPROVEMENT , ADULT LITERACY IN AMERICA (1993) (con- cluding that half of the United States adult population is only able to accomplish tasks set within the first two levels of the five-level scale of literacy), available at http://www.nald.ca/fulltext/report2/rep15-01.htm (last vis- ited Mar. 16, 2003); see also Linda Seebach, U.S. Literacy Rates Are Lower Than You Thought, R OCKY MOUNTAIN NEWS , Feb. 23, 2002, at 4W (stating that approximately half of American adults do not have basic reading skills). See generally Edward B. Fiske, National Policy Urged to Combat Adult Literacy, N.Y. T IMES , Sept. 9, 1988, at A12 (describing an effort to combat U.S. illiteracy and citing the fact that at least 60 million Americans can- not read the morning paper).

355.See Azizah al-Hibri, Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud:

The Duty to Educate, 16 L OY. L.A. I NT’L & C OMP . L. R EV. 9, 22 (1993) (stating that the Prophet Mohammed (PBUH) was illiterate); see also Kim Nielson et al., Of Pain and Place: Documenting Devastation Near and Far— Of the Body, The Mind, and The Soul, M IAMI NEW TIMES , Sept. 20, 2001, at “Feature Stories” (positing that the Prophet Mohammed was illiterate). See generally Anton F. Haddad, Divine Revelation: The Basis of All Civiliza- tion (Board Counsel, New York) (noting that the Prophet Mohammed was illiterate), available at http://bahai- library.org/articles/revelation.haddad.html (last visited Mar. 28, 2003).

356.See Azizah al-Hibri, supra note 355, at 22 (stating that the first message to the Prophet Mohammed was the com- mand to read); see also Holy Qur’an (Iqra) 96:1 (proclaiming in the first part of the Surah: “Read in the name of God who created the human from a (mere) clinging clot. Read and God is the most noble who taught with the pen. He taught the human being what that being did not know”).

357.See Azizah al-Hibri, supra note 355, at 22 (stressing the importance of education and knowledge in the religion of Islam); see also Holy Qur’an (Al Mujadilah) 58:11.

358.See Azizah al-Hibri, supra note 355, at 23. 122New York International Law Review[Vol. 16 No. 2 Today in Algeria 60 percent of those in graduate school are women. 359 Seventy percent of Muslim undergraduates in Malaysia are women, 360 and 70 percent of students at the only uni- versity in the United Arab Emirates, Al Ain, are female. 361 In Morocco, women constitute 67 percent of the population. 362 However, 92 percent of Moroccan women living in rural areas are illiterate; Yemen and Pakistan have nearly as bad illit- eracy rates for women in rural areas—at 91 percent and 87 percent, respectively. 363 Adult female illiteracy in Bangladesh is 70 percent, in India it is 55 percent, and in Egypt it is 56 per- 359.See Susan Whitney, An Equal Voice: Muslim Women Speak Out, D ESERT NEWS , Apr. 20, 2002, at E01 (citing the fact that approximately 60 percent of those enrolled in graduate school in Algeria are women to support the view that in the Muslim faith women should be educated). See generally Azizah al-Hibri, supra note 202, at 2 (explain- ing the problems surrounding the education of women in Muslim countries). But see Naomi Sakr, Seen and Start- ing to Be Heard: Women and Arab Media in A Decade of Change, S OC. RES., Sept. 22, 2002, at 821 (emphasizing the need for more technological capability in Middle Eastern countries as a means to educating women, while specifically stating the literacy rate of women in Middle Eastern countries seemed to be rising; several African nations, such as Algeria, which has a female literacy rate of 44 percent, were lagging).

360.See Zaharah Othman, Muslim Leaders in Malaysia are Wary of Inter-Faith Association, Malaysia General News, Feb. 26, 2002, at 2. See generally Elizabeth Spahn, Difficult Straits Interdependence and Women’s Labor in Taiwan, 32 N EW ENG. L. R EV. 779, 791 (1998) (contrasting Malaysia, a country that has closed the gender gap with regard to wage discrimination by emphasizing higher education for women, from Taiwan). Cf. Khairy Jamalud- din, Model Nation: Malaysia Stands Out in the Muslim World for Merging Islam and Modernity, T IME , Mar. 10, 2003, at 30 (stating that Malaysia is a progressive country, citing its emphasis on the need for education and the fact that women are responsible for major governmental decisions).

361.But see United Arab Emirates University We b s i t e , University Profile: Facts and Figures (Nov. 1999) (providing enrollment statistics for the 1999–2000 academic year that indicate that women comprise 79 percent of the stu- dent body), available at http://www.uaeu.ac.ae/uprofile/facts.html#MFS (last visited Mar. 28, 2003). See gener- ally Private Sector Holds Key to Demographic Imbalance, G ULF NEWS , Feb. 24, 2001 (noting the fact that in the United Arab Emirates, more women seek higher education than men), at LEXIS: News and Business: News Group File, All; Aftab Kazmi, News From The United Arab Emirates: UAE University to Set Up IT College, G ULF NEWS , Aug. 20. 2000 (describing plans for a new information technology school at the United Arab Emirates University, where the enrollment will be 300 males and 1,000 females), at LEXIS, News Group File, All.

362.See Morocco: Moroccan Women Press for Change, A FRICA NEWS , Feb. 18, 2002 (noting that 67 percent of the Moroccan population is comprised of women and children), at LEXIS, News Group File, All; see also Central Intelligence Agency World Factbook for 2002, Morocco: People, Jan. 1, 2002 (listing vital population statistics indicating that women and children comprise 67 percent of the population in Morocco), available at http:// www.cia.gov/cia/publications/factbook/geos/mo.html#People (last visited Mar. 28, 2003). See generally Press Release, Population Distribution and Basic Demographic Characteristics Report (Malaysian Department of Statis- tics), Nov. 6, 2001 (presenting Morocco’s population statistics), available at http://www.statistics.gov.my/ English/framesetPressdemo.htm (last visited Mar. 28, 2003).

363.See United States Agency for International Development, Asia and the Near East: Education and Training: Sector Overview (June 13, 2002) (discussing the literacy rates of Morocco, Pakistan and Yemen), available at http:// www.usaid.gov/regions/ane/newpages/sectors/overview-ed.htm (last visited Mar. 16, 2003); UNESCO Institute for Statistics, Global Statistics: Education, July 2002 (listing the female literacy rates for Pakistan and Yemen as 72 percent and 74 percent, respectively), available at http://portal.unesco.org/uis/file_download.php/View_ Table_Literacy_Country_Age15%2B.xls?URL_ID=5035&filename=10403992040View_Table_Literacy_Coun try_Age15%2B.xls&filetype=application%2Fvnd.msexcel&filesize=287232&name=View_Table_Literacy_ Country_Age15%2B.xls&location=user-S/ (last visited Mar. 17, 2003); Central Intelligence Agency World Fact- book for 2002, Bangladesh: People, Eg ypt: People, and India: People, Jan. 1, 2002 (stating the literacy rates for Paki- stan and Yemen), available at http://www.cia.gov/cia/publications/factbook/index.html (last visited Mar. 28, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law123 cent. 364 Nigeria’s literacy rate for women is 47 percent. 365 Education has been severely limited for poor Muslim women, particularly in third-world agricultural countries. In addition radical regimes, such as the Taliban, have had a severely detrimental effect on women’s education.

Some of the factors that restrict girls’ access to education in the Middle East, Near East, Africa, and Asia are the perception in rural areas that the benefits of educating girls are mini- mal. 366 Moreover, illiterate parents are less likely to see the importance of girls’ education, par- ticularly where girls are expected to marry at an early age and begin child-bearing at an early age. In addition, poor families are much more likely to give higher priority to boys’ education, while requiring girls to take care of housekeeping tasks, care for younger siblings, carry water, and take care of animals. Finally, many families are not inclined to send girls to co-educational schools, particularly if the schools are not set up to accommodate girls (bathrooms, etc.). 367 364.See United States Agency for International Development, Asia and the Near East: Education and Training: Sector Overview, supra note 363 (discussing the literacy rates of Morocco, Pakistan and Yemen); see also UNESCO Insti- tute for Statistics, Global Statistics: Education, supra note 363 (listing the female literacy rates for Bangladesh, Egypt, and India as of 2002). See generally Central Intelligence Agency World Factbook for 2002, supra note 363 (stating the literacy rates in Bangladesh, Egypt and India).

365.See Howard W. French, Democracy to Despotism: A Special Report—Nigeria, N.Y. T IMES , Apr. 4, 1998, at A1 (charting Nigeria’s female illiteracy rate at 47 percent); see also Central Intelligence Agency World Factbook for 2002, Nigeria: People, Jan. 1, 2002 (indicating that Nigeria’s female literacy rate is 47.3 percent), available at http://www.cia.gov/cia/publications/factbook/geos/ni.html#People (last visited Mar. 16, 2003). See generally Ademola Adegbamigbe, Nigeria: Forty Jeers for a Giant, A FRICA NEWS , Oct. 4, 2000 at “News, Documents, & Commentaries” (noting the literacy rate in Nigeria, as of 2002, was 52 percent).

366.See Bharathi A. Venkatraman, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari’a and the Convention Compatible?, 44 A M. U. L. R EV. 1949, 1957 (1995) (noting the special circumstances that women face in rural areas and describing the Woman’s Convention focusing on the participation of women in rural development, and requiring, in particular, assistance of State’s parties in helping rural women to obtain formal and informal training and education, access agricultural credit and loans, and procure adequate housing); see also Reem Bahdi, Gender and War: Commentary: Iraq, Sanctions and Security: A Critique, 9 D UKE J. G ENDER L. & P OL’Y 237, 240–41 (2002) (suggesting that women are not educated in rural areas because parents prefer to educate the males in the family). See generally Jewett, supra note 346, at 211–12 (explaining that nations adopting the laws of Islam and struggling with Western secular ideas often leave women in a precarious position, particularly rural women, and suggesting that education will improve the position of women in Islamic countries).

367.See also Jennifer L. Rakstad et al., The Progress of Tanzanian Women in the Law: Women in Legal Education, Legal Employment and Legal Reform, 10 S. C AL. REV. L. & W OMEN ’S STUD . 35, 63 (2000) (describing recommenda- tions to improve access to education for women in Islamic countries, including providing separate sanitary facil- ities for women). See generally Khaliq, supra note 11, at 11–12 (elucidating the role of women from the perspective of fundamentalist Muslims); Scott Peterson, Lives Still Restricted, Afghan Women See Hope, C HRIS - TIAN SCI. M ONITOR , Dec. 30, 1999, at 1 (describing the state of the female educational system under Afghani- stan’s then fundamentalist government, known as the Taliban). 124New York International Law Review[Vol. 16 No. 2 Employment—U.S. Sixty percent of American women in the civilian non-institutional population 16 years old and over participated in the labor force in the year 2000. 368 In 2000, 65.6 million women of 140.9 million workers, or a little less than half of the workforce, were employed in the U.S. 369 As late as 1963, stereotypes about the appropriate roles for women—particularly married women with children—made it extraordinarily difficult for women to obtain the types of jobs that men held. 370 Women were discouraged from seeking education and training for fields such as medicine, law, and business, and restricted from apprenticeships for skilled trades. In 1963, among full-time, year-round workers, the average woman earned only 59 percent of the wages that the average man received. The Equal Pay Act of 1963 was passed to ameliorate this prob- lem. 371 Actually, the purpose of the Equal Pay Act was to force employers to provide equal pay for equal work, or “to provide . . . jobs, the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions . . . without basing pay on the sex of the employee.” 372 368.See U.S. Census Bureau, Statistical Abstract of the United States 2002: Labor Force, Employment and Earnings, 2003, at 367 (displaying statistics regarding the civilian labor force participation rates), available at http:// www.census.gov/prod/2003pubs/02statab/labor.pdf (last visited Mar. 28, 2003). See generally Women Closing the Gap with Men in Some Measures According to Census Bureau, U.S. N EWSWIRE , Mar. 24, 2003, (highlighting sta- tistics measuring the American workforce and indicating changes by gender in the composition and skill level of the work force), available at LEXIS, News Group File, Most Recent Two Years; Frank Swoboda, How the Rules Have Changed: For the Undereducated, Hard Work Is No Longer Enough, W ASH . POST , Apr. 23, 1995 (Magazine), at W15 (providing a brief overview of the history of the female work force in the United States).

369.See U.S. Census Bureau, Statistical Abstract of the United States 2000: Labor Force, Employment and Earnings, 2001, at 405 (listing 1999 statistics indicating that slightly less than half of the women in the United States were employed), available at http://www.census.gov/prod/2001pubs/statab/sec13.pdf (last visited Mar. 28, 2003); see also U.S. Dep’t of Labor, Women’s Bureau, 20 Leading Occupations of Employed Women 2000, Mar. 2001 (provid- ing statistics indicating that employed women over the age of 16 account for approximately half the work force in the United States), available at http://www.dol.gov/wb/stats/main.htm (last visited Mar. 28, 2003). See gener- ally U.S. Census Bureau, Factfinder: Quick Tables: Economic Characteristics: Employment, Income, Poverty and More (posting United States labor and economic statistics), available at http://factfinder.census.gov/bf/ _lang=en_vt_name=DEC_2000_SF3_U_DP3_geo_id=01000US.html (last visited Mar. 28, 2003).

370.See Ve e n a K . M u r t h y, Undue Influence and Gender Stereotypes: Legal Doctrine of Indoctrination?, 4 C ARDOZO WOMEN 'S L.J. 105, 127–29 (1997). See generally Lundy R. Langston, Women in the New Millenium: The Prom- ises of the Past Are Now the Problems for the Millenium, 6 C ARDOZO WOMEN 'S L.J. 1, 2–3 (1999) (describing the evolution of the role of women in American culture and exploring challenges that American women have faced).

371.See Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2003) (prohibiting wage discrimination based on gender); see also Stephanie Aaronson & Heidi I. Hartmann, Pay Equity and Women’s Wage Increases: Success in the States, A Model for the Nation, 1 D UKE J. G ENDER L. & P OL'Y 69, 71–73 (1994) (providing an overview of the move- ment for equal pay for similar work regardless of gender, and the genesis of the Equal Pay Act of 1963, and its subsequent interpretation). See generally Nina J. Kimball, Not Just Any “Factor Other Than Sex”: An Analysis of the Fourth Affirmative Defense of the Equal Pay Act, 52 G EO. W ASH . L. R EV. 318, 319 (1984) (noting the Congress’ express purpose to ensure that employers do not adjust wage rates based on gender while discussing the constitu- tional basis for the Equal Pay Act).

372.See Equal Pay Act of 1963, 29 U.SC. § 206(d) (2003) (prohibiting discrimination on the basis of gender in the workplace); see also Amelia K. Duroska, Comparable Work, Comparable Pay: Rethinking the Decision of the Ninth Circuit Court of Appeals in “American Federation of State, County, and Municipal Employees v. Washington,” 36 A M.

U. L. R EV. 245, 251–52 (1986) (discussing the legislative history and the social conditions that created the Equal Pay Act). See generally Mayer G. Freed & Daniel D. Polsby, Comparable Worth in the Equal Pay Act, 51 U. C HI.

L. R EV. 1078, 1079–81 (1984) (citing the purposes of the Equal Pay Act while interpreting the notion of equal pay for equal work). Summer 2003] Comparing Islamic Law and Anglo-American Law125 In 1999, the average American woman earned 70 cents to a man’s dollar, thus needing to work an extra 17 weeks to earn what the average man earned in a year. 373 The gap in 1999 was even larger for African-American women, who earned just 64 cents, and Hispanic women, who earned just 55 cents for each dollar that white men earned. 374 As of 2000, American women were earning 83 percent of what men were earning. 375 Thus, even after many states revised their constitutions to guarantee gender equality, a stubborn pay gap persists even though women in the U.S. account for nearly half of all workers and represent a significant segment of the educated and skilled workforce. 376 Another attempt to limit discrimination against women was Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer “from discriminating against an individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 377 Muslim Women—Employment Islam permits a woman to directly conduct her business contracts and financial transac- tions.378 In other words, she can work if she chooses. As far back as 634 A.D., during the Reign of the Caliph Omar Ibn al-Khattab, known as Omar the Great, a woman managed a market. 379 373.See Bureau of Lab. Stat., About Equal Pay (1999) (UAL), at 2; see also Brad Health, Prosperity Can’t Close Metro Area Income Gap, D ETROIT NEWS , Sept. 10, 2002, at 1A (stating that American women made 67 cents on the American male’s dollar). See generally Christopher J. Bruce, MacCabe v. Westlock: The Use of Male Earnings Data to Forecast Female Earning Capacity, 37 A LBERTA L. R EV. 748, 749 (1999) (explaining the sources and causes of the disparity in earnings between men and women in the United states while commenting on arguments con- cerning the use of average male earnings in deciding female plaintiff awards).

374.See Bureau of Lab. Stat., supra note 373; see also U.S. Department of Labor, Report on the American Workforce for 2001 (2001), at 24 (providing statistics on the earnings of African American and Hispanic women in the United States). See generally, U.S. Dep’t Lab., Bureau of Lab. Stat., Highlights of Women’s Earnings in 1999, at 3 (2000) (presenting raw data indicating significant disparities in earnings for the Caucasian, African American and His- panic women when compared with white men).

375.See U.S. Census Bureau, Current Populations Reports, Bulletin of Labor Statistics, Employment and Earnings, Series P-60: Women’s Earnings as Percent of Men’s 1979–2002, at 40 (displaying and commenting on United States con- sumer income statistics), available at http://www.census.gov/prod/2002pubs/p60-218.pdf (last visited Mar. 28, 2003); see also Equal Pay Act, 29 U.S.C. § 206(d) (2003) (declaring a prohibition of sex discrimination by employers). See generally Laurie Belsie, Women Nearing Retirement Confront Pay Gap, C HRISTIAN SCI. M ONTIOR , Aug. 19, 2002, at 16 (discussing the reasons for the disparity in earnings between men and women in the United States).

376.See U.S. Department of Labor, Women’s Bureau, Equal Pay: A Thirty Year Perspective, June 10, 1968, at 47.

377. 42 U.S.C. §2000 (e)(2) (2002).

378.See Abdalati, supra note 37, at 187; see also Fatima Akaddaf, Application of the United Nations Convention on Con- tracts For the International Sale of Goods (CISG) To Arab Islamic Countries: Is the CISG Compatible With Islamic Law Principles?, 13 P ACE INT'L L. R EV. 1, 9 (2001) (asserting that Islam gives women power to conduct business transactions without approval of their husbands). See generally Ghodsi, supra note 83, at 664–65 (implying that a woman has independent power to contract because her consent is needed for a contract to be binding).

379.See Mohammed Omar Farooq, Khutbah Series, Gender Issues: The Ideals and the Realities (1993) (stating that women had a role of enforcement within the marketplace), available at http://www.globalwebpost.com/ farooqm/writings/islamic/gender/k_gender4.html (last visited Mar. 28, 2003). See generally Sayeh & Morse, supra note 51, at 323–24 (explaining a woman’s role in early Islamic society as one of much control); A Synthesis Report of the Near East Region, Lack of Awareness of and Commitment to Internationally and Nationally Recog- nized Women's Rights (explaining that Muslim women have power to manage and conduct business under Islamic law), available at http://www.fao.org/docrep/x0176e/x0176e08.htm (last visited Mar. 28, 2003). 126New York International Law Review[Vol. 16 No. 2 A Muslim woman is entitled to equal pay for equal work. A basic element of Islam is the principle of equality or equity. 380 Employees are to be treated fairly in the workplace. 381 All mankind are one, and the sexes must honor each other. 382 The problem lies in the fact that there is a tension between secular and religious law (Shariah) and the idea of women working outside the home. A major argument used in the past for analyzing the minimal participation of Muslim women in the workforce rested upon the principle of family honor in the Muslim community, defined in terms of the sexual purity of women.

383 Working side by side with the opposite sex was considered taboo. Some Middle Eastern and North African countries still have labor markets based on sex, where male workers face little competition from women, and where women workers participate in traditionally female occupations and are disadvantaged from getting jobs in the non-agricultural market. 384 In many of the Muslim countries, women have made great strides in the workplace. In Jordan, the participation of women in the labor force has more than doubled—from 7.7 per- cent to 14 percent in 1993. 385 The Jordanian government’s “new” labor law, which went into effect in June 1996, includes an article on working mothers that prohibits employers from ter- minating women’s jobs or giving them notice about termination if they are in the sixth month of their pregnancy, or on maternity leave. 386 The law also allows a mother ten weeks of paid maternity leave, compared to the previous allowance of eight weeks, including one hour each day for breast-feeding during the first year after delivery, and one year of unpaid leave to care 380.See Abdalati, supra note 37, at 35; see also Holy Qur’an (Al Hujurat) 49:13; Joelle Entelis, supra note 34, at 1281 (expressing that the principle teachings of the Qur’an are about equality).

381.See Abdalati, supra note 37, at 35. But see Sandra Miller, Note Re-examining the Role of Equal Employment Oppor- tunity Commission Regarding Title VII’s Foreign Laws Defense, 31 G EO. W ASH . J. I NT'L L. & E CON . 439, 457 (1998) (explaining the inequities that cultural factors, not Islamic laws, bring into the workplace); Scott Smith, Comment Extra Territorial Application of Title VII and the Americans with Disabilities Act: Have Statute, Will Tr a v e l, 36 S. T EX. L. R EV. 191, 211–13 (1995) (stating that Muslim religious law fills in gaps in civil law to restrict women’s rights in the labor force).

382.See Holy Qur’an (Al Hujarat) 49:13, n.4933; see also Akaddaf, supra note 378, at 9–10 (explaining that Islamic law advocates equality among the sexes).

383.See Nadia H. Youssef, Women and Agricultural Production in Muslim Societies, Studies in Comparative Interna- tional Development, 51, EBSCO (2000); see also Jamal A. Badawi, The Status of Women in Islam (demonstrating that women have been seen as the primary care givers in the home and therefore have not achieved outside employment), available at http://www.iad.org/books/S-women.html (last visited Mar. 28, 2003). See generally Jewett, supra note 346, at 197–98 (asserting that Muslim women have maintained their role within the family and have kept traditions, such as veil-wearing, that demonstrate purity).

384.See Richard Anker, Gender and Jobs, International Labour Office, 302 (1998); see also Gawdat Bahgat, The Silent Revolution: Education and Instability in the Gulf Monarchies, 22 SPG F LETCHER F. W ORLD AFF. 103, 109 (1998) (stating that employment in Islamic countries, even at high levels, is still divided by gender stereotypes); Lairold M. Street, International Commercial and Labor Migration Requirements as a Bar to Discriminatory Employment Practices, 31 H OW . L.J. 497, 501–02 (1988) (explaining the discrimination women face in the workplace in Muslim countries).

385.See Women in Jordan: a Synopsis—The Challenges of Middle Eastern Women in the 21st Century, Spring 2002, 188, available at http://www.go.co.jo/QNoorjo/man=in/women/jo.htm (last visited Mar. 28, 2003); see also U.S.

Dept. of State, Report on Human Rights (Jordan 1999) (maintaining that the number of women in the labor force in Jordan has almost doubled), available at http://www.state.gov/www/global/human_rights/1999_hrp_report/ jordan.html (last visited Mar. 28, 2003); see also Jordan-Human Resources: A Healthy Population, The Result: A Qualified Labor Force (demonstrating that the working population of women in Jordan has doubled in percent- age), available at http://www.kinghussein.gov.jo/resources4.html (last visited Mar. 28, 2003).

386.See Labor Law No. 8, 1996 (Jordan). Summer 2003] Comparing Islamic Law and Anglo-American Law127 for their newborns. 387 The law is based on international conventions set by the International Labor Organization (ILO). 388 Moroccan women constitute 20 percent of the total judges in the country, and in Tunisia, women who sit on the bench comprise 25 percent of the total number of judges in the coun- try. 389 In Morocco, on the other hand, women dominate clerical jobs, and in the widespread food-processing industry, women are almost exclusively chosen as packers (rather than manag- ers).

390 In addition, the workforce of Morocco’s many garment factories is largely female, and women work long hours, with low pay and lax labor regulations. 391 In journalism, television, and advertising, Muslim women have made important strides, including Nawal al-Sirry, former head of all news broadcasts for Egyptian TV, who joined ART, the Saudi-funded satellite station (which beams all over the Middle East and Asian area) as chief of social science and public service broadcasting for satellite programs. 392 Heva Raouf, the 387.Id.

388.See Wo m e n i n Jo r d a n, supra note 385; see also William B. Gould IV, Labor Law for a Global Economy: The Uneasy Case for International Labor Standards, 80 N EB. L. R EV. 715, 746–47 (2001) (asserting that labor laws in Jordan being implemented as a result of the U.S.-Jordan Trade Agreement follow ILO guidelines). See generally United States-Jordan: An Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area, Oct. 24, 2000, art. 6, 41 I.L.M. 63 (explaining that as part of the trade agree- ment, Jordan is to support and implement ILO labor principles).

389.See Elizabeth Fernea, The Challenges of Middle Eastern Women in the 21st Century, 54 M IDDLE EAST J. #2, 88, Spring 2000 (noting the advancement of women in areas such as the judiciary); see also Michele Brandt & Jeffrey A. Kaplan, The Tensions Between Women’s Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia, 12 J. L. & R ELIGION 105, 131–32 (1995–1996) (illustrating that Tunisian efforts to increase women’s literacy has resulted in a great number of Tunisian female judges). See generally Mayer, supra note 115, at 278 (demonstrating the progressive nature of women’s rights in education and employment in Tunisia).

390.See Morocco: Foreign Labor Trends 1990, 1992 National Trade Data Bank-Market Reports, Apr. 1992, see also Valentine Moghadam, Women’s Industrial Employment in the Middle East and North Africa, Forum, Vol. 2 No. 2 (1995) (noting that women’s work is primarily in industry, including food processing, but is of limited advance- ment due to their male counterparts), available at http://www.erf.org.eg/nletter/Ju195-05.asp (last visited Mar.

28, 2003). See generally U.S. Dept. of State, Report on Human Rights (Morocco 1999) (asserting that women who participate in Morocco’s workforce are primarily in industrial and service sectors), available at http: // www.state.gov/www/global/human_rights/1999_hrp_report/morocco.html (last visited Mar. 28, 2003).

391.See Fernea, supra note 389, at 88 (noting the inequalities that still exist despite the advancement of women in the workforce); see also Jane Dwasi, Kenya: A Study in International Labor Standards and Their Effect on Working Women in Developing Countries: The Case For Integration of Enforcement Issues in the World Bank’s Policies, 17 W IS.

I NT'L L.J. 347, 393–94 (1999) (stating that although Morocco is one of the few developing countries to endorse equal pay in their labor laws, enforcement of this provision is weak); Moghadam, supra note 390, at Vol. 2, No.

2, (explaining that Moroccan women work mainly in the garment manufacturing industry where they are paid lower wages than men and kept in low skill jobs).

392.See Fernea, supra note 389, at 88 (asserting that women taking on more challenging roles are breaking away from patriarchal ideology). See generally Sonia Aly Dabbous, Women in the Media Past, Present, & Future: A Case Study of Egypt (noting that the number of Egyptian women journalists has been increasing over the decades and women hold positions of seniority in radio and television), available at http://www.ayamm.org/english/Confer- ence%202002%20e% 202. htm; Islamic Voice, M USLIM WOMEN IN POL., Mar. 2000 (illustrating the strides Muslim women have made in the job market, including journalism), available at http://www.islamicvoice.com/ march.2000/editorial.htm (last visited Mar. 28, 2003). 128New York International Law Review[Vol. 16 No. 2 Egyptian editor of Al-Sha’b, an opposition newspaper, addresses issues in terms of Islamic val- ues: corruption in government agencies, a collapsed building in Cairo due to faulty contractors, and education. Nadia Hijab, a Jordanian, explained in her book Wo m a n p o w e r how women helped change Jordan from an agricultural society to an industrial workforce. 393 Hijab makes a comparison with the U.S. during World War II, when women took jobs in factories to promote the war effort. 394 In 1996, Turkey and Syria both had a far higher percentage of women who were teaching in universities than either England or the Netherlands. 395 In Turkey, women represent 29 per- cent of professional occupations, but only six percent of managers are women. 396 Agriculture is the only sector of the labor force where the representation of Turkish women approximates that of men. 397 The proportion of women in Turkey in other sectors, however, is very low. 398 The percentage of women who are teaching in universities in Egypt was higher than in either France or Canada. 399 In Egypt, according to the World Development Report, 29 percent of the Egyptian workforce is made up of women. 400 The female daily wage for Egyptian women was 45 percent of the male daily wage of the Egyptian workforce in 1966, falling to 393.See Fernea, supra note 389, at 88 (noting women’s prominent work in agriculture); see also Nadia Hijab, Wo m a n - power, The Arab Debate on Women at Work (Cambridge University Press 1988). See generally Daniel J. Epstein, Making the Desert Bloom: Competing for Scarce Water Resources in the Jordan River Basin, 10 T EMP . INT'L & C OMP . L.J. 395, 409 (1996) (asserting the need for change in Jordan from an agricultural system to preserve water resources for a growing population).

394.See Fernea, supra note 389, at 88; see also Hijab, supra note 393.

395.See Mary Abowd, Saving Women’s Lives, I N THESE TIMES , May 13, 2002, at 8. See generally Elaine C. Hagopian, Dateline: Lebanon, Syria, and Jordan (stating that schooling in Syria is free and there is no gender discrimination present in the education system), available at http://www.afsc.org/pwork/0999/0911.htm (last visited Mar. 28, 2003); Turkey: Number of Teaching Staff by Academic Title, W OMEN ’S INDICATORS AND STATISTICS (illustrating that almost half of the overall population of teachers in universities in Turkey are women), available at http:// www.die.gov.tr/toyak1/edu_form&adult03/index.html (last visited Mar. 28, 2003).

396.See Zehra F. Arat, Deconstructing Images of the Turkish Woman, S T. M ARTIN ’S PRESS , 1998, at 186; see also Isik Urla Zeytinoglu, Employment of Women and Labor Laws in Turkey, 15 C OMP . LAB. L.J. 177, 185 (1994) (assert- ing that while many women have gained professional status only a small portion have obtained a managerial position); U.S. Dept. of State, Report on Human Rights, Turkey 1999 (noting that while many Turkish women participate in the labor force, only a small proportion of those hold managerial positions), available at http:// www.state.gov/www/global/human_rights/1999_hrp_report/turkey.html (last visited Mar. 28, 2003).

397.See Arat, supra note 396, at 185; Zeytinoglu, supra note 396, at 179 (noting that employment of women in the agricultural industry is equal to that of men).

398.See Arat, supra note 396, at 179 (demonstrating that women’s employment in areas other than agriculture is very low compared to that of males). See generally U.S. Dept. of State, Report on Human Rights, supra note 396 (illus- trating that a large percentage of women are employed in agriculture, where they face widespread wage discrimi- nation).

399.See Arat, supra note 396, at 185; see also Fa rkh on d a Has san , Islamic Women in Science (stating the percentage of women teachers at Egyptian universities as being high, and somewhat similar to figures of the same in the United States), available at http://sachet.org.pk/web_columns/webcolumn_03.asp (last visited Mar. 28, 2003).

400.See G. Reza Arabsheibani, Male-Female Earnings Differentials Among Highly Educated Eg yptians, 8 #2 E DUCA - TIONS ECONOMICS 129; see also World Development Report 2000/2001, Table of Labor and Population (illus- trating the statistical makeup of the Egyptian workforce, showing women make up around 30%), available at http://www.worldbank.org/poverty/wdrpoverty/report/tab3.pdf (last visited Mar. 28, 2003). See generally U.S.

Dept. of State, Report on Human Rights, Egypt 1999 (stating the opportunities and achievements of women in the Egyptian workforce), available at http://www.state.gov/www/global/human_rights/1999_hrp_report/egypt .html (last visited Mar. 28, 2003). Summer 2003] Comparing Islamic Law and Anglo-American Law129 44.7 percent in 1976. 401 However, in the case of college graduates, Egyptian women do not suffer from discrimination in pay. 402 In Iran, women comprise about 48 percent of the nation’s population. 403 The rate of women’s employment was 53 percent in 1996, as compared to 42.6 percent in 1976.404 Thirty- eight percent of Iranian working women were employed in the government sector in 2000. 405 In 2000, women employees at the Ministry of Education and Training comprised around 45 percent. 406 Moreover, the number of women employed in the Ministry of Health, Medical Treatment, and Training dropped from 45.6 percent in 1997 to 43.3 percent in 2000. 407 In general in the government sector, Iranian women occupied only 2.8 percent of posts of deputy directors and managing directors; in legislative, management and high-ranking positions, only 100 women, or 12.6 percent occupied key positions out of a total of 325,000 individuals.

408 401.See Arabsheibani, supra note 400, at 129. See generally Ragui Assaad, The Microeconomics of Growth in Egypt: The Role of Households and Institutions (illustrating a continuing decrease in women’s wages in the Egyptian work- force), available at http://www.erf.org.eg/html/grp/GRP%20-%20Sep%2002/Egypt-%20%20assaad1%20 summary.pdf (last visited Mar. 28, 2003); Mona Zulficar, Women In Development: A Legal Study—Part I (1995) (illustrating the wage discrimination that is apparent between men and women in the Egyptian labor force), available at http://www.unesco.org/webworld/peace_library/EGYPT/WOMEN/102.HTM (last visited Mar. 28, 2003).

402.See Arabsheibani, supra note 400, at 129. See generally U.S. Dept. of State, Report on Human Rights, supra note 400 (asserting that men and women in Egypt receive equal rates of pay in the private sector).

403.See Zahra Ragui, Policy Forum: The Role of Women in Iranian Society, M IDDLE EAST INSIGHT MAGAZINE (stating the percentage of females in Iranian society), available at http://www.mideastinsight.org/5_99/ shojaie5.99_2.html; see also Tamasha: Presenting the Rich Iranian Culture and Arts, Iran’s Population, Facts and Figures (explaining that over 48% of Iran’s population is made up of women), available at http:// www.tamasha.com/information/Iran_General_Information/popu.htm; Islamic Azad University Region One, Iran in Brief (illustrating that there are slightly more men than women in Iran’s population), available at http:// www.iauro.ac.ir/Iran/iran.html.

404.See Raziyeh Vatabparast, Introduction to Women’s Employment in the State Sector, E NTEKHAB (Persian Morning Daily), Apr. 25, 2002, at 6; see also U.S. Dept. of State, Report on Human Rights (Iran 1999) (explaining the role of women in the Iranian workforce, which increased due to necessity during the war and has declined since), available at http://www.state.gov/www/global/human_rights/1999_hrp_report/iran.html. But see Gholamali Farjadi & Ali Pirzadeh, Labor Market an Employment in Iran (stating that while overall participation in Iran’s labor force has declined women’s participation has increased, while men’s participation has decreased recently), available at http://www.erf.org.eg/html/grp/GRP%20-%20Sep%2002/Iran%20-%20Gholamali.PDF.

405.See Vatabparast, supra note 404, at 6. See generally Elaine Sciolino, Iranian Women’s Long Climb Back (asserting that one goal of Iranian women is to work in the government sector), available at http://www.theglobalist.com/ DBWeb/StoryId.aspx?StoryId=2028; Farjadi & Pirzadeh, supra note 404 (illustrating the increase in the number of women holding positions in government).

406.See Vatabparast, supra note 404, at 6 (stating that women employed in Iran’s Ministry of Education and Training consisted of about 45% of their total employees). See generally Mehdi Moayedi, A Statistical Glance at Women's Employment in Iran (explaining that the public sector in Iran employs many women, notably the Ministry of Education), available at http://www.irvl.net/IRAN35.HTM.

407.See Vatabparast, supra note 404, at 6 (demonstrating the drop in the percentage of women employed by Iran’s Ministry of Health, Medical Treatment and Training to under 45% in 2000). See generally Moayedi, supra note 406 (explaining that the public sector in Iran employs many women, notably the Ministry of Health, an area of employment suited for women).

408.See AdventureDivas: IRAN: Zahra Rahnavard (offering a many-pronged perspective on life in Iran, pre-and post revolution), available at http://www.pbs.org/adventuredivas/iran/divas/rahnavard.html (last visited on Apr. 10, 2003); see also Women’s Vote Could Be Decisive, I RAN REPORT , June 4, 2001, Vol. 4, No. 21 (stating that the role of women in Iran has been improving since 1979), available at http://www.rferl.org/iran-report/2001/06/21- 040601.html (last visited on Apr. 10, 2003). 130New York International Law Review[Vol. 16 No. 2 These figures translate into the fact that there is an absence of women in pivotal positions, both economic and political, in Iran.

At present, women in the Gulf region are facing conservative governments and religious leaders who are calling for women’s confinement at home, women’s segregation in higher edu- cation, and women’s resignation from jobs. 409 In 1996 in Saudi Arabia, the Mufti (the highest religious authority) released a fatwa (suggestion based on religious scholars’ interpretations of the Qur’an) condemning working women and those mixing with men as a temptation that would lead to loose morals and adultery. 410 The number of Saudi working women is less than five percent, and most of them are employed in the health and education sectors. 411 This policy has been formulated to shape a new political culture that acts as a screen, ensuring that techno- logical and social progress remain within acceptable bounds. 412 In other words, in Saudi Ara- bia, women work in a completely segregated workplace, totally separate from men. Gender segregation in employment is meant to ensure that a women’s place is in the home. 413 In Bahrain in April 1995, the government was swift in reacting to a petition signed by more than three hundred professional women who had called for the restoration of democracy and freedoms. 414 The Bahraini government demanded a written retraction, or the loss of their jobs. 415 In Kuwait, 93 percent of the labor force consists of employees of the state. 416 Kuwaiti women comprise nearly 33 percent of the total. However, women hold only five percent of all 409.See Culture: Looking at Gender Equality in Iran, I NTER PRESS SERVICE , Feb. 17, 1998 (stating and comparing the availability of women’s civil rights in Iran); see also Saudi Arabia—The Balance Between Time Zones, ABS D IPLO - MAT RECORDER , Sept. 19, 1994, Vol. 28, No. 3 (describing the changes among some women in the post first gulf crisis in Saudi Arabia). See generally Women’s Vote Could Be Decisive, supra note 408 (stating the number of women in Iran’s Universities had been on the rise).

410.See Ibn Baz: Women's Work Is Quick Road To Adultery, ABS D IPLOMAT RECORDER , June 15, 1996, Vol. 44, No.

24 (condemning women’s strive to employment). See generally Donna E. Arzt, Heroes or Heretics: Religious Dissi- dents Under Islamic Law, 14 W IS. INT’L L.J. 349 (1996) (discussing developments in the Islamic world in the last 25 years).

411.See Shannon A. Middleton, Women's Rights Unveiled: Taliban's Treatment of Women in Afghanistan, 11 I ND .

I NT'L & C OMP . L. R EV. 421 (2001) (briefly describing the rates of women working in hospitals); Laura Schlich- tmann, Accommodation of Pregnancy-Related Disabilities on the Job, 15 B ERKELEY J. E MP. & L AB. L. 335, 361 (1994) (stating how most women are employed in low-paid nonprofessional jobs); Eileen Silverstein & Peter Goselin, Intentionally Impermanent Employment and the Paradox of Productivity, 26 S TETSON L. R EV. 1, 10 (1996) (noting how women make up a large percentage of the part-time employment and temporary help sup- ply).

412.See generally Middleton, supra note 411 (discussing the role of women in the culture).

413.See Debra L.W. Cohn, Equal Employment Opportunity for Americans Abroad, 62 N.Y.U. L. R EV. 1288, 1289 (1987) (noting that Saudi Arabia is a country that encourages or requires discriminatory practices); Middleton, supra note 411, at 448 (noting how women could work after standards were in place for workplace gender segre- gation).

414.See Munira A. Fakhro, “The State in the Gulf region,” 5 G ENDER , POL., AND MIDDLE EAST POL’Y, #3, Sept. 16, 1997.

415.Id.

416.Id. Summer 2003] Comparing Islamic Law and Anglo-American Law131 administrative positions. 417 Hosni and Al-Qudsi’s study in 1988 reported that a 31 percent wage gap between Kuwaiti men and women was due to discriminatory factors. 418 Kuwaiti women are also barred from holding public office. 419 Afghanistan’s radical Taliban virtually destroyed women’s rights. Under Taliban rule, women were not allowed to work or to educate themselves, in contradiction with the Holy Qur’an, and were virtually sequestered. 420 In 1996, there were 17,000 women teachers who were employed in the schools of Kabul; in 2002, there were none. 421 However, since the fall of the Taliban, Afghan women have been regaining their rights.

What appears to be unique to Islamic societies, however, is the widespread prevalence of children and adolescent girls in the agricultural workforce. 422 There is also a widespread inci- 417.See id. (stating statistical data on the number of Kuwaiti women who hold administrative positions); see also Diana Elias, Kuwait University Separates the Sexes, S EATTLE TIMES , July 22, 2002, at A8 (explaining how more women are being employed in positions outside of the home); University Honours Former Rector, K UWAIT TIMES , Oct. 22, 2002, at 2 (covering the ceremony honoring a Kuwaiti woman in an administrative office).

418.See Reza G. Arabsheibani, Male-Female Earnings Differentials Among Highly Educated Egyptians, #2, 8 E DUC .

E CON . 129, 130 (noting that there are wage discrepancies between Kuwaiti men and women). See generally Tim Sullivan, Women Wait for Right to Vote in Kuwait, A SSOCIATED PRESS ONLINE , Dec. 9, 2002, at 6 (stating that although women are becoming more equal in Kuwait’s democratic society, they still are subject to lower wages based on sex). But see Laurie Goering, Kuwaiti Women Trade Up Exchange, C HI. TRIB ., Jan. 29, 2003, at 4 (claim- ing that Kuwaiti law mandates equality of the sexes in education and employment).

419.See Arabsheibani, supra note 418, at 131 (explaining that women have not attained equality in the political arena); see also Tim Sullivan, Kuwait’s Democracy Omits Voting Rights, B RADENTON HERALD , Dec. 9, 2002, at 7 (noting that Kuwaiti women have still not attained the right to vote); Municipal Elections in Bahrain Produce Good Turnout, But No Women Victors, C ANADIAN PRESS , at 2 (describing how Kuwaiti women are fighting for a voice in political matters).

420.See Mia Handshin, Women vital in quest to rebuild societies, The Advertiser, Apr. 1, 2003, at 20 (stating that Afghani women under the Taliban were not given equal opportunities to work or take part in community and political life); see also 1,000 Afghan Women Enjoy Picnic in Former Taliban Stronghold, A GENCE FRANCE PRESSE , Mar. 26, 2003 (noting that the Taliban banned women from education and work, virtually imprisoning them in their own homes). See generally Pamela Constable, Pakistan's Mullahs Speak Softly; Now in Government, Religious Leaders Temper Their Agenda, T HE WASH . POST , Mar. 22, 2003, at A12 (discussing women's rights under Tali- ban rule).

421.See Arabsheibani, supra note 418, at 129 (providing statistical data regarding women occupying teaching posi- tions); see also Afghan Herat governor interviewed on Kabul TV, BBC W ORLDWIDE MONITORING , Mar. 28, 2003 (citing the interview with Esmail Khan, the governor of Heart, who among other things, revealed that in Herat alone there are more than 3,000 women teachers). See generally Meredith Setzman, Afghan Women's Group Informs Penn State Students of Need for Rights, U. W IRE, Mar. 20, 2003 (noting the role of the Revolutionary Association of the Women of Afghanistan (RAWA) in furthering the employment opportunities of female teach- ers).

422.See Nadia Youssef, Women and Agricultural Production in Muslim Societies, S TUDIES IN COMP . INT’L. D EV.

(2002), at 49–50 (discussing the role of children and adolescent girls in Afghanistan agricultural workforce); see also Pe t e H am i ll , Coming Back a Day or Horror, a Year of Revival, D AILY NEWS , at 25 (stating that young children who have to take the burden of the agriculture); James G. Scoville, Segmentation in the Market for Child Labor:

the Economics of Child Labor Revisited, T HE AM. J. OF ECON . & S OC., July 1, 2002, at 713 (explaining the role of girls in Afghan agriculture). 132New York International Law Review[Vol. 16 No. 2 dence of unpaid family labor among poorer Muslim countries, including Libya, Pakistan, and Morocco. 423 Moreover, the low level of Muslim women’s involvement in employment has been explained by way of morality taboos regarding the intermingling of the sexes. 424 The major thrust of the argument forwarded in the past in analyzing the minimal participation of women in the urban workforce rests upon the principle of family honor in the Muslim community. 425 Maintaining the sexual purity of women prescribes the virtual exclusion of women from partic- ipation in public life, including the economic sectors where women would have to work side by side with men or deal with the male public 426 —in contradiction of the Holy Qur’an. American Women—Social Issues and Politics Women in the U.S. have come a long way. As of 2000, the composition of state legisla- tures by political party shows that there were 2,818 women Democrats and 2,600 women Republicans in the lower houses. 427 Moreover, there were 955 women Democrats and 931 423.See Erin L. Han, Book Note, 22 B.C. T HIRD WORLD L.J. 201, 217 (Winter 2002) (reviewing Ute Gerhard, Legal and Non-Legal Responses to Concerns for Women’s Rights in Countries Practicing Female Circumcision: Debat- ing Women’s Equality (2001) (explaining that women who are forced into family labor have little chance to achieve economic and political equality)). See generally Tr a c y E . H i g g i n s , Anti-Essentialism, Relativism, and Human Rights, 19 H ARV . W OMEN ’S L.J. 89, 122 (Spring 1996) (discussing the psychological effects of family labor on women in developing countries).

424.But see Sarah A. Rumage, Resisting the West: The Clinton Administration’s Promotion of Abortion at the 1994 Cairo Conference and the Strength of the Islamic Response, 27 C AL. W. I NT’L L.J. 1, 36 (Fall 1996) (offering that Muslim women are permitted to work so long as their husbands agree). See generally Alison E. Graves, Wo m e n i n I r a n :

Obstacles to Human Rights and Possible Solutions, 5 A M. U. J. G ENDER & L. 57, 89 (Fall 1996) (explaining that women in Iran need their husband’s permission to work).

425.See Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 A M. U. J. I NT’L & P OL’Y 1, 12 (1997) (discussing that Muslim women still are restricted in their ability to work); see also Jennifer Jewett, The Recommendation of the International Conference on Population and Development: The Possibility of the Empower- ment of Women in Egypt, 29 C ORNELL INT’L L.J. 191, 197 (1996) (stating that many Muslim males believe that letting women work is an insult to their family honor).

426.See Youssef, supra note 422, at 49–50; see also Jewett, supra note 425, at 197 (discussing different ways Egyptian Islamic culture tries to maintain the sexual purity of their women, including confining women to the home and not allowing them to attend school or work with males); Rose Ismail, Extreme Views on Islam and Women, N EW STRAITS TIMES (Malaysia), Sept. 18, 1995, at 14 (arguing one viewpoint that Islam prevents women from par- ticipating in public life).

427.See Statistical Abstract of the United States, Table 395, Women Holding State Public Offices by Office and State 2000, 2001, at 15; see also Robert E. Tomasson, Number of Women in State Legislatures Rises Steadily, N.Y. T IMES , May 26, 1987, at A14 (looking at the number of women who are Democrats in state legislatures, which is greater than the number of women who are Republicans). See generally Amy Pyle, Women To Play Largest Role Ever In Legislature, L.A. T IMES , Nov. 23, 1998, at A3 (mentioning that the number of women in state legislatures across the nation has grown significantly). Summer 2003] Comparing Islamic Law and Anglo-American Law133 women Republicans in the upper houses. 428 In 2000, there were 1,672 women, or 22 percent, serving in state legislatures. 429 In 1972 Libertarian Toni Nathan made history as the first American woman to receive an electoral vote for Vice President of the U.S. 430 In 1984, Geraldine Ferraro was the first woman to run for Vice President of the U.S., but she lost to George Bush, Sr. 431 As of yet, no woman has been elected Vice-President or President of the U.S., but many women have filled cabinet positions in the government. Muslim Women—Social Issues and Politics Muslim women played a part in the political life of the early community. Sometimes they even argued with the Messenger on numerous points. The hadith of Omar interprets the Holy Qur’an and sheds some light on the increasing importance and role of women in the Islamic society in its early period:

We the people of the Quraish (tribe of Madinah, Saudi Arabia, 7 A.D.) used to have the upper hand over our wives, but when we came to Madinah, we found that the women of Ansar had the upper hand over their men, so our women also started learning the ways of the Ansar women. I shouted at my wife and she retorted, and I dislike her answering me back. She said to me, why are you surprised at my answering you back? By Allah, the wives of the Prophet answer him back and some of them avoid speaking to him through- out the day until the night. 432 428.See Statistical Abstract of the United States, supra note 427. See generally R.W. Apple, Jr., Sisterhood is Political; Steady Local Gains By Women Fuel More Runs For High Office, N.Y. T IMES , May 24, 1992, at § 4(1) (arguing that the number of women in state legislatures has tripled in recent decades); Nina Burleigh, A Vote for Soft Clout, C HI. TRIB ., June 12, 1988, at 2 (discussing the growing number of women within the state legislatures over recent decades and its positive effect).

429.See Statistical Abstract of the United States, supra note 427, at 15 (detailing the number of female state legislators in 2000); Philadelphia Inquirer, Apr. 2, 2003, (discussing the amount of females elected as state legislators in 2003), available at http://www.philly.com/mld/inquirer/2003/02/02/news/nation/5083005.htm (last visited Apr. 10, 2003); The Badger Herald Online, Feb. 7, 2003, (noting a decline in female legislators in 2000), avail- able at http://www.badgerherald.com/vnews/display.v/ART/2003/02/07/3e432fc1c947c (last visited Apr. 10, 2003).

430.See Fact Sheet, Center for American Women and Politics: Eagleton Institute of Politics, Rutgers, the State Uni- versity of New Jersey, Apr. 4, 2003 (stating that Toni Nathan was the first woman to receive an electoral vote for Vice President in 1972), available at http://www.cawp.rutgers.edu/facts/cawpfs-update.html (last visited Apr. 10, 2003); Center for Voting and Democracy (explaining that Roger L. MacBride cast his electoral vote in favor of Vice Presidential candidate Toni Nathan in 1972), at http://www.fairvote.org/e_college/faithless.htm (last vis- ited on Apr. 10, 2003); The U.S. Electoral College Web Zine (1999) (noting that MacBride’s vote made Toni Nathan the first woman to receive an electoral vote for Vice President), at http://www.avagara.com/e_c/ ec_unfaithful.htm#MacBride (last visited Apr. 10, 2003).

431.See Stephanie Harvin, Geraldine Ferraro Loses Against George Bush, T HE POST AND COURIER , July 24, 2002, at 105 (indicating that Ferraro lost the 1984 Vice Presidential seat to George Bush); Women in American History (1999) (noting that Ferraro was the first woman to run for Vice President on the Democratic ticket), available at http://search.eb.com/women/articles/Ferraro_Geraldine_Anne.html (last visited Apr. 10, 2003); Scholastic (2003) (stating that Ferraro was the first woman on a major national party ticket for Vice President), available at http://teacher.scholastic.com/researchtools/articlearchives/womhst/gerald.htm (last visited Apr. 10, 2003).

432.See Azizah al-Hibri, Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, Including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud, 16 L OY. L.A. I NT’L & C OMP . L. R EV. 22, 23 (1993). 134New York International Law Review[Vol. 16 No. 2 This hadith points in crude but simple words, to the great movement in women’s freedom that was initiated by the action of the Prophet in Madinah. 433 The hadith shows that the Prophet did not discourage women from participating in discussions on various subjects. This open attitude of the Prophet not only initiated a great movement of freedom among women, but also nourished and developed in them an interest in social and political matters. 434 Much later, the first Asian feminist, an Iranian woman named Tahirih, stated, “You can kill me, but you cannot stop the feminist movement.” 435 Although she was assassinated, the Islamic feminist movement went on. Today, Ms. Shahrbanu Amami serves as a Member of the Iranian Parliament, “Majlis MP,” and represents Urmiya (the capital of the West Azarbaijan Province). She is working to fight discrimination against women in a male-dominated society in various fields, including sports facilities, welfare, and social security. 436 The Majlis is taking steps with respect to women’s status and restoration of their rights. For instance, in regard to the legal matrimonial age for girls, one of the serious problems confronted by some girls is that usually they are forced by their fathers to undergo an unwanted marriage at an early age in the name of the law. 437 According to the new amendment ratified by the Majlis, the court is autho- rized to make decisions about the marriage of young girls below the age of fifteen. Thus, this new law will block a twelve-year-old young girl from being forced into getting married to a 40- year-old man, a practice that has been quite common in rural areas. 438 433.See A FZULAR RAHMAN , ROLE OF MUSLIM WOMEN IN SOCIETY 136 (Seerah Foundation, London 1986) (not- ing how wives were treated generously).

434.See id.

435. Rafi Ahmad Fidai, Concise History of the Muslim World, at 29 (vol. 2 1998).

436.See Kambiz Ghanea Bassiri, Hujjat Al-Islam Mohsen Saidzadeh: A Contemporary Iranian Cleric on Fiqh, Women, and Civil Society, 1 UCLA J. I SLAMIC & N EAR E. L. 229, 230–31 (2002) (translating some of a leading Islamic cleric's theories on the connections between Islamic law, Islamic society and the religion of Islam itself, particu- larly focusing on the treatment of Islamic women in contemporary Islamic culture); see also Anne Elizabeth Mayer, A "Benign" Apartheid: How Gender Apartheid Has Been Rationalized, 5 UCLA J. I NT'L & F OREIGN AFF.

237, 244 (2000/2001) (discussing the Convention on the Elimination of All Forms of Discrimination Against Women and pointing out the inhumane treatment of women in the several nations that have not signed this important document, including Iran). See generally Alison E. Graves, Women in Iran: Obstacles to Human Rights and Possible Solutions, 5 A M. U. J. G ENDER & L. 57, 65 (1996) (noting the marked difference in the American and Iranian understandings of feminism, and explaining that Iranian women’s pursuit of a feminist liberalization of laws does not seek the right to vote nor does it seek to change a political climate as Western women did; how- ever the goal is more towards equality in the home and generally in society).

437.See Maryam Javaherian, Women's Rights in Iran: What Can the International Human Rights System Do?, 40 S ANTA CLARA L. R EV. 819, 837 (2000) (detailing the past and current position of women in Iran with respect to certain "fundamental rights" that should be guaranteed by the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights; those rights are equal treatment under the law, protection against torture, due process, freedom of expres- sion and religion, and equality in marriage); Kristin J. Miller, Human Rights of Women in Iran: The Universalist Approach and the Relativist Response, 10 E MORY INT'L L. R EV. 779, 798 (1996) (highlighting the current status of marriage laws in Iran and how they discriminate against women); see also Ta m i l l a F. G h o d s i , Tying a Slipknot:

Temporary Marriages in Iran, 15 M ICH . J. I NT'L L. 645, 653–55 (1994) (chronicling the relationship between the politics in Iran and the social position in which women find themselves as a result of the social climate in the country).

438.See Masih Alinejad, Introduction to Women’s Status in Iran, B ANU W EEKLY , Apr. 7, 2002, at 8–9 (providing excerpts from an interview with Shahrbanu Amani in which she discusses the amendment that was recently rati- fied by the Majlis). See generally Ghodsi, supra note 83, at 645 (recognizing that both temporary and permanent marriages are accepted in Iran); S.I. Strong, Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Law Affects Human Rights and the Potential for Violence, 19 M ICH . J. I NT’L L. 109, 142–43 (1997) (explaining the scope of the Majlis’ authority to create new laws). Summer 2003] Comparing Islamic Law and Anglo-American Law135 Two Iranian women hold positions as members of the Board of Directors of the Iranian Bar Association. Ms. Minoo Afsharirad, the first woman candidate from Urmiya, was elected from among 70 candidates. Her duties include work in the compilation of laws, cooperation with the legal directorate of investment companies of banks, and editing a political science directory. 439 Women in Bangladesh have begun to play a key role in politics. They freely partic- ipate in national and local elections. In fact, ten percent of parliamentary seats are reserved for them. 440 In Morocco, the Union de la’action feminine, a middle-class-based organization, spear- headed a 1993 petition to the late King Hassan II to reform mudawana (family law), especially as it affected women in the areas of divorce and child custody. 441 The Union gathered one mil- lion signatures of men and women and the King appointed a royal commission to examine the issue, especially child custody, and reforms emerged as a result of the campaign.

Politics in the Arab countries is still controlled by men. Women account for 4.6 percent of all Arab legislators. 442 Benezir Bhutto was one of the first Muslim women to serve as a Prime Minister of a Muslim country, Pakistan, along with Begum Khaleda Zia, Prime Minister of Bangladesh, and Speciosa Kazibwe, Prime Minister of Uganda. 443 Women in the U.S.: Taxes Article I, section 8 of the U.S. Constitution grants Congress the power to tax. 444 The Six- teenth Amendment to the Constitution allows Congress to tax “incomes, from whatever source derived.” 445 All citizens of the United States are subject to income tax, yet not everyone must 439.See Abdullah Khatamifar, Interview with Ms. Minoo Afsharirad, Member of Board of Directors of Bar Association, P ERSIAN MORNING DAILY , Apr. 17, 2002, at 20 (relaying the substance of an interview with Ms. Minoo Afshar- irad, including a brief summary of her duties and activities); see also Masih Alinejad, Introduction to Women’s Sta- tus in Iran, B ANU W EEKLY , Apr. 7, 2002, at 8–9 (offering Shahrbanu Amani’s opinion on the potential advantages of the newly ratified amendment); R AHMAN , supra note 433, at 136.

440.See Beijing Report, Fourth World Conference on Women Delegates (Sept. 8, 1995), at 1. See generally Javaherian, supra note 437, at 847–48 (discussing the increased participation of women in the Iranian political system); Sherifa Zuhur, Empowering Women or Dislodging Sectarianism?: Civil Marriage in Lebanon, 14 Y ALE J.L. & F EM- INISM 177, 188 (2002) (referring to the notion of reserved parliamentary seats for women in various Islamic countries).

441.See Beijing Report, supra note 440, at 1; see also Mayer, supra note 222, at 218–19 (recognizing the feminist push for reforms in personal status and equal rights in Morocco). See generally Adair Dyer, The Internationalization of Family Law, 30 U.C. D AVIS L. R EV. 625, 635 n.33 (1997) (noting that Morocco has made more recent changes concerning adoption).

442.See Beijing Report, supra note 440, at 1. But see Deborah Kuan, A Sweep for Zia, W ORLD PRESS REVIEW , Dec.

2001, at ¶ 1 (noting that Begum Khaleda Zia, a Muslim woman, has served as Bangladesh’s Prime Minister for five years); LeShanda D. Maze, Prime Minister Discusses Democracy, U. OF LA VERNE CAMPUS TIMES , May 16, 1997, at ¶ 4–5 (recognizing that Benezir Bhutto, a Muslim woman, has served as Prime Minister of Pakistan).

443.See Beijing Report, supra note 440, at 1; see also Maze, supra note 442, at ¶ 4–5 (acknowledging Benezir Bhutto as one of the first female Prime Ministers of Pakistan); Kuan, supra note 442, at ¶ 1 (reporting that Begum Khaleda Zia has been serving as Bangladesh’s Prime Minister for a full five-year term).

444. U.S. C ONST . art. I, § 8.

445. U.S. C ONST . amend. XVI. 136New York International Law Review[Vol. 16 No. 2 file a tax return. 446 The purpose of taxes is to generate revenue for the federal budget. 447 The Internal Revenue Code regulates United States income tax law. 448 Ta x e s a r e b a s e d o n t h e amount of an individual’s taxable income. 449 Although all citizens of the U.S. are subject to a federal income tax, not all citizens are subject to a state income tax. Forty-three of the fifty states have a state income tax. 450 Some states such as Nevada do not have a state income tax. 451 Taxes Under Muslim Law Zakah, or the religious tax of 2.5% a year, is required under Islamic Law. 452 Zakah is not just a form of charity or alms-giving or tax, but a duty mandated by God undertaken by Mus- 446.See Kleinrock’s Tax Expert Analysis and Explanation, Overview of Taxation of Individuals, § 1.2 (2003) (noting that all United States citizens are subject to income tax); see also 2-1 Federal Income, Gift and Estate Taxation (MB) § 1.01 (2003) (laying out the requirement for those who must file a tax return); Richard Lavoie, A World of Taxpayers? It’s Not a Small World After All, 70 U. M O. AT KAN. L. R EV. 545, 585–86 (2002) (recognizing that a business may be subject to income tax, but not yet required to file a tax return).

447.See George Mundstock, Taxation of Intercorporate Dividends Under an Unintegrated Regime, 44 T AX L. R EV. 1, 54 (1988) (briefly stating that the tax rules effectively generate revenue); see also William F. Fox, The Personal Income Tax as a Component of State Tax Structure, 39 V AND . L R EV. 1081, 1085 (1986) (explaining the concept of reve- nue elasticity with respect to states that use income tax to generate revenue); John J. Harrington, A Review of the S t r u g g l e f o r Te n n e s s e e Ta x R e f o r m, 60 T ENN . L. R EV. 431, 438 (1993) (noting that Tennessee’s state income tax helps to generate revenue for the state).

448.See 26 U.S.C. § 1. See generally Elizabeth C. Ekmekjian, The Jock Tax: State and Local Income Taxation of Profes- sional Athletes, 4 S ETON HALL J. S PORTS L. 229, 230–31 (1994) (recognizing that it is the Internal Revenue Code that regulates tax laws concerning income and deductions); Leo L. Schmolka, Income Taxation of Charita- ble Remainder Trusts and Decedents’ Estates: Sixty-Six Years of Astigmatism, 40 T AX L. R EV. 1, 57 (1984) (giving examples of code provisions that regulate income tax).

449.See Robert J. Desiderio, James La Fata, & Maria Siemel McCulley, New Mexico Taxes: Taking Another Look, 32 N.M. L. R EV. 351, 351 (2002) (stating that the tax base for personal income tax is an individual’s taxable income); see also Bruce W. Bennett, Cashing In or Cashing Out?: The Fair Tax Act of 1999, 27 J. L EGIS . 69, 74 (2001) (describing the tiered-rate system which involves applying a different tax rate based on a person’s taxable income); Celeste J. Taylor, Know When to Say When: An Examination of the Tax Deduction for Alcohol Advertising That Targets Minorities, 12 L AW & I NEQ . 573, 607 (1994) (explaining how an increase in a company’s taxable income may bump that company into a high tax bracket and expose it to higher tax rates).

450.See James Charles Smith & Walter Hellerstein, State Taxation of Federally Deferred Income: The Interstate Dimen- sion, 44 T AX L. R EV. 349, 349 n.1 (1989) (recognizing the seven states that do not have a state income tax); see also Richard E. Green, The Taxing Profession of Major League Baseball: A Comparative Analysis of Nonresident Tax- ation, 5 S PORTS LAW. J. 397, 292 (1998) (listing some of the states that do not impose a state income tax); Rich- ard W. Rousseau, Update: Tax Benefits for Military Personnel in a Combat Zone or Qualified Hazardous Duty Area, 1999 A RMY LAW. 1, 21 (1999) (giving one example of a state that does not impose state income tax).

451.See Rousseau, supra note 450, at 21 (stating explicitly that Nevada is one state that does not impose a state income tax on individuals); see also Green, supra note 450, at 292 (naming a few of the states that do not have state income tax); Smith, supra note 450, at 349 n.1 (noting that Nevada is one of a handful of states that does not impose personal state income tax).

452.See Abdalati, supra note 37, at 95; see also Raj Bhala, Theological Categories for Special and Differential Treatment, 50 K AN. L. R EV. 635, 690–91 (2002) (explaining that the religious tax is imposed annually at a fixed percentage rate based on savings); Freamon, supra note 5, at 20 (noting the existence of the alms-tax as an open question in Islamic law). Summer 2003] Comparing Islamic Law and Anglo-American Law137 lims in the interest of society as a whole. 453 The literal meaning of zakah is purity. 454 The intention of zakah is to: (1) purify the property of the contributor; (2) purify the heart of the contributor of selfishness and greed for wealth; (3) free the Muslim in debt from liabilities incurred under pressing necessities; (4) purify the employees appointed for the collection of zakah to pay their wages; (5) purify Muslims in service of the cause of God by means of propa- gation of Islam; and (6) help Muslim wayfarers who are stranded in a foreign land and in need of help. If one has only 15 dollars, he or she must be a contributor. 455 The Holy Qur’an states: “It is righteous to spend out of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves.” 456 Usury—U.S. Usury is defined as charging a rate of interest that exceeds the applicable maximum amount of interest allowed by law. 457 Under current federal law, usury is prohibited. 458 National banks are able to charge a rate of interest pursuant to the laws of the states in which they are located. 459 A national bank charging interest above the level allowed by the state in 453.See Abdalati, supra note 37, at 95 (characterizing zakah as more than charity and as a higher duty mandated by God); see also Raj Bhala, supra note 452, at 689 (explaining that almsgiving is one of the Five Pillars of Islam); Barry A. Feinstein, Operation Enduring Freedom, 11 J. T RANSNAT ’L L. & P OL’Y 201, 227–28 (2002) (discussing zakah as an obligation owed to Allah by all Muslims).

454.See Abdalati, supra note 37, at 95 (giving the literal meaning of zakah as purity). But see Bhala, supra note 452, at 689 (focusing on the nature of zakah as a religious tax that all Muslims must pay); Freamon, supra note 5, at 20 (defining zakah as an alms-tax).

455.See Abdalati, supra note 37, at 95 (describing the reasons for and the effects of zakah); see also Bhala, supra note 452, at 690 (discussing some of the underlying reasons for the existence of zakah); Graeme Newman, Khomeini and Criminal Justice: Notes on Crime and Culture, 73 J. C RIM . L. & C RIMINOLOGY 561, 581 (1982) (noting that Islam prefers almsgiving over government spending as a way of helping the needy).

456. Holy Qur’an (Al Baqarah) 2:177.

457.See Eric A. Posner, Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract, 24 J. L EGAL STUD . 283, 301 (1995) (defining usury laws as state laws that regulate interest rates). See generally Steven W. Bender, Rate Regulation at the Crossroads of Usury and Unconscionability: The Case for Regulating Abusive Commercial and Consumer Interest Rates Under the Unconscio- nability Standard, 31 H OUS . L. R EV. 721, 728–29 (1994) (providing a general discussion of usury and its effects on borrowers and lenders); Vincent D. Rougeau, Rediscovering Usury: An Argument for Legal Controls on Credit Card Interest Rates, 67 U. C OLO . L. R EV. 1, 25–26 (1996) (describing usury in broader social and ethical terms).

458.See Vincent D. Rougeau, supra note 457, at 26–27 (referring to the national trend opposing usury laws that are unfavorable to individuals). But see Bender, supra note 457, at 723–24 (describing ways in which lenders have circumvented state usury laws and federal preemption); Christopher Caswell, The New Mortgages: A Functional Legal Analysis, 10 F LA. ST. U. L. R EV. 95, 114–15 (1982) (illustrating instances in which usury will not be found despite the federally imposed ceilings on interest).

459.See Vincent D. Rougeau, supra note 457, at 10 (noting that banks charge interest according to the laws of the states in which they are located); see also J.C. Rozendaal, Choice of Law in Distinguishing Leases from Security Interests Under the Uniform Commercial Code, 75 T EX. L. R EV. 375, 397 (1996) (criticizing the idea that parties should be allowed to alienate a forum state’s usury laws). But see Erin Ann O’Hara, Opting Out of Regulation: A Public Choice Analysis of Contractual Choice of Law, 53 V AND . L. R EV. 1551, 1563 (2000) (suggesting that a choice-of-law provision is one way to get around the usury laws of the state in which the bank is located). 138New York International Law Review[Vol. 16 No. 2 which the bank is located is in violation of 12 U.S.C. § 85 and 12 U.S.C. § 86, and is subject to penalties. 460 State laws governing usury vary from state to state. In Texas, for example, charging an interest rate greater than ten percent per year is usurious, unless otherwise authorized by law.

Delaware case law has interpreted the Delaware Code to explain that any rate of interest agreed to by a lender and a borrower is legal. New York holds defendants civilly liable for charging an interest in excess of 25 percent, and they may be held criminally liable. Usury Under Islam Usury is condemned by the Holy Qur’an. 461 Because usury, or any form of interest, is condemned, American Muslims had difficulty buying a home under the concept of mort- gage. 462 However, Islamic scholars have interpreted the Holy Qur’an to be flexible enough to accommodate Muslims since a mortgage is the only system under which Americans, or legal residents, can buy a home. 463 The Vote in the U.S. Women in the U.S. were granted the right to vote in 1920 under the Nineteenth Amend- ment.464 460.See 12 U.S.C. § 85 (2003) (establishing the levels of interests which are allowed); see also 12 U.S.C. § 86 (2003) (defining usury interest and providing the penalty for charging such interest). See generally Po s n e r, supra note 457, at 313 (giving historical background on usury laws and the penalties associated with them).

461. Holy Qur’an (Al Nisa) 4:1-14.

462.See Akaddaf, supra note 378, at 30 (alluding to the difficulties that arise in commercial transactions because of the restrictions imposed by the Qur’an); see also Twibell, supra note 2, at 76–77 (explaining that the prohibition against usury extends to all types and forms of interest); Shael Herman, Trusts Sacred and Profane: Clerical, Secu- lar, and Commercial Uses of the Medieval Commendatio, 71 T UL. L. R EV. 869, 889 (1997) (implying that difficul- ties in obtaining loans are due to the limitations against usury imposed by Islam).

463.See Daniel Klein, The Islamic and Jewish Laws of Usury: A Bridge to Commercial Growth and Peace in the Middle East, 23 D ENV . J. I NT’L L. & P OL’Y 535, 537 (1995) (acknowledging one of the least restrictive interpretations of the Holy Qur’an’s prohibition of the charging of interest); see also Akaddaf, supra note 378, at 30 (suggesting that establishing custom and trade practices helps to facilitate commercial transactions in light of the usury restrictions imposed by the Qur’an); John Y. Gotanda, Awarding Interest in International Arbitration, 90 A M. J.

I NT’L L. 40, 47–48 (1996) (acknowledging that there are some exceptions to the prohibition against usury).

464.See Reva B. Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850– 1880, 103 Y ALE L.J. 1073, 1148–49 (1994) (explaining that women sought the right to vote in a sixteenth amendment but were not granted that right until the Nineteenth Amendment); see also Paul D. Healey, De Min- imis Curat Lex: A Compendium of Legal Trivia, 89 L AW LIBR. J. 55, 66 (1997) (noting that women were granted the right to vote by the Nineteenth Amendment to the United States Constitution in 1920); Malla Pollack, What is Congress Supposed to Promote?: Defining “Progress” in Article I, Section 8, Clause 8 of the United States Con- stitution, or Introducing the Progress Clause, 80 N EB. L. R EV. 754, 778 (2001) (describing several amendments, including the Nineteenth Amendment, that increase the participation of citizens). Summer 2003] Comparing Islamic Law and Anglo-American Law139 The Vote—Muslim Women Women vote in many Muslim countries, except Saudi Arabia and Afghanistan. 465 In Kuwait, women have been promised the vote, but lost in a 1999 parliamentary vote on the issue. 466 Military—U.S. According to the U.S. Constitution, Congress has the power to raise and support armies.467 Under this source of power, Congress passed the Military Selective Service Act, which authorizes the President of the United States “to require the registration of every male citizen and male resident aliens between the ages of 18 and 26.” 468 Currently in the U.S., women are not required to register with selective service. 469 The Supreme Court has held that in a combat situation, men and women are not similarly situated, and Congress’s decision to authorize the registration of men only does not violate the due process clause of the United States Constitution. 470 465.See Elizabeth A. Fernea & Robert W. Fernea, Symbolizing Roles: Behind the Veil, as cited in C ONFORMITY AND CONFLICT : READINGS IN CULTURAL ANTHROPOLOGY 234 (James Spradle & David M. McCurdy eds., 1986); see also Jessica Neuwirth, Women and Peace and Security: The Implementation of U.N. Security Council Resolution 1325, 9 D UKE J. G ENDER L. & P OL’Y 253, 256–57 (2002) (recognizing that Afghan women should demand the right to vote and other fundamental rights). But see Courtney W. Howland, The Challenge of Religious Funda- mentalism to the Liberty and Equality Rights of Women: An Analysis Under the United Nations Charter, 35 C OLUM .

J. T RANSNAT ’L L. 271, 316 (1997) (neglecting to mention the denial of the right to vote as a limitation on women’s rights in Saudi Arabia).

466.See Kuwaiti Legilature Says ‘No’ to Women’s Vote (Nov. 30, 1999) (reporting on the recent parliamentary vote denying women the right to vote in Kuwait), available at http://www.cnn.con/WORLD/meast/9911/30/ Kuwait.vote/ (last visited Mar. 16, 2003); Kerri L. Ritz, Soft Enforcement: Inadequacies of Optional Protocol as a Remedy for the Convention on the Elimination of All Forms of Discrimination Against Women, 25 S UFFOLK TRAN - SNAT ’L L. R EV. 191, 191 (2001) (stating that Kuwait only affords men the right to vote).

467.See U.S. C ONST . art. I, § 8, cl. 12 (stating that Congress has the power to raise and support armies).

468.See Military Selective Service Act, 50 U.S.C. § 451, 453 (2002).

469.See Karen Lazarus Kupetz, Equal Benefits, Equal Burdens: “Skeptical Scrutiny for Gender Classifications After United States v. Virginia, 30 L OY. L.A. L. R EV. 1333, 1371 (1997) (stating that the current Selective Service law requires only “male persons” to register); see also James T. Lang, Should I Stay or Should I Go: The National Guard Dances to the Tune Called by Two Masters, 39 C ASE W. R ES. L. R EV. 165, 199–200 (1989) (discussing Congress’ refusal to extend the Military Selective Service Act to include both sexes); Diane H. Mazur, A Call To Arms, 22 H ARV . W OMEN ’S L.J. 39, 58 (1999) (providing that the Military Selective Service Act required only men to reg- ister for the draft).

470.See Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (holding that Congress acted within its Constitutional author- ity when it enacted the military Selective Service Act, authorizing only the registering of men); see also James D.

Milko, Beyond the Persian Gulf Crisis: Expanding the Role of Servicewomen in the United States Military, 41 A M. U.

L. R EV. 1301, 1328 (1992) (questioning whether women should face the same combat liabilities as men); Leslie Ann Rowley, Gender Discrimination and the Military Selective Service Act: Would the MSSA Pass Constitutional Muster Today?, 36 D UQ. L. R EV. 171, 171–72 (1997) (explaining that the Supreme Court reasoned that women were excluded because they were not similarly situated to men, therefore there was no equal protection problem). 140New York International Law Review[Vol. 16 No. 2 Military-Islamic View A woman should not serve as a warrior in the military, or put herself in a situation where she can be harmed or raped. 471 However in the Battle of Uhad (625 A.D., Madinah, Saudi Arabia), and in the Khaibar Campaign (628 A.D., Madinah, Saudi Arabia), women supplied soldiers with medicine and arrows, attended to sick and wounded soldiers, and prepared food. 472 Human Rights—U.S. Under the Constitution, the Bill of Rights gives American men and women the following rights:

l. Freedom of religion, speech, press, and assembly 2. Right to bear arms 3. Right to be free from quartering soldiers in any house without the consent of the owner 4. Freedom from unreasonable searches and seizures 5. Freedom from self-incrimination; due process of the law, just compensation for prop- erty, grand jury indictment for capital crimes 6. Right to a jury trial in a criminal case 7. Right to a civil trial where the value of a controversy shall exceed twenty dollars 8. Right against excessive bail, fines, and punishments 9. Enumerated rights, so as not to deny or disparage others 10. Powers reserved to the states: the powers not delegated to the U.S. by the Constitution nor prohibited by the states are reserved to the states respectively, or to the people. 473 The United States has been active in addressing human rights issues in other countries, but as yet, the American worker, for the most part, is an “at-will” employee and can be fired for 471.See Montrece McNeill Ransom, The Boy's Club: How "Don't Ask, Don't Tell" Creates a Double-Bind for Military Wo m e n, 25 L AW & P SYCHOL . REV. 161, 162–63 (2001) (emphasizing a need for women in the military in the United States). But see Robin Rogers, A Proposal for Combatting Sexual Discrimination in the Military: Amend- ment of Title VII, 78 C AL. L. R EV. 165, 165 (1990) (noting that women in the military are confined by ambigu- ous roles).

472.See F AZAIL -E-AAMAL , T HE TEACHINGS OF ISLAM , N EW DELHI , INDIA 180 (Idara isha’at-E-Diniyat (P) Ltd, 1990). See generally Khaliq, supra note 11, at 46 (analyzing the Battle of Uhad and its effects on society); Tamil- Islam, Does Islam Discourage Women from Attending the Masjid? (emphasizing the womens’ courage in the Khai- bar Campaign), available at http://www.tamilislam.com/english/human_rights/Islamdiscouragewomen.htm (last visited Mar. 13, 2003).

473. U.S. C ONST . amend. I–X. Summer 2003] Comparing Islamic Law and Anglo-American Law141 any reason. 474 Discrimination still exists in many areas in spite of Title VII of the Civil Rights Act, 475 the Age Discrimination in Employment Act, 476 the Equal Pay Act, 477 and the Fair Employment Practices Act. 478 Sexual discrimination in the form of lower pay, and women being the last hired, first fired, and slower to receive promotions, including not being able to receive promotions because of the “glass ceiling,” continues to persist. 479 Until recently, women were fired from their jobs for being pregnant or for taking maternity leave.480 Three out of four working women earn less than $30,000, and nine out of ten earn less than $40,000. 481 Women in the U.S. receive only half the average pension benefits that men receive, and half of all women work in relatively low-paying jobs without pensions. 482 474.See Robert J. Conner, A Study of the Interplay Between Promissory Estoppel and At-Will Employment in Texas, 53 SMU L. R EV. 579, 587 (2000) (stating that at-will employees can be terminated at any time for no cause); see also Joanna L. Grossman, The Second Circuit Review: 2000–2001 Term: Making a Federal Case Out of It: Section 1981 and At-Will Employment, 67 B ROOK . L. R EV. 329, 329 (2001) (providing that most Americans work at- will); Joseph H. Knittig, Everything You Wanted to Know About Missouri's Public Policy Exception But Didn't Know You Should Ask, 61 M O. L. R EV. 949, 949–50 (1996) (explaining that an at-will employee can be discharged without cause).

475.See Title VII of the Civil Rights Act, 42 U.S.C.S. §§ 2000 et. seq. (2003) (prohibiting employers from discrimi- nating against any employees on the basis of race, color, religion, sex or national origin).

476.See Age Discrimination in Employment Act, 29 U.S.C.S. § 623 (2003) (making it unlawful for an employer to discriminate on the basis of age).

477.See Equal Pay Act, 29 U.S.C.S. 206 (2003) (providing minimum wage requirements for all American employ- ees).

478.See Fair Labor Standards Act, 29 U.S.C.S. §§ 201 et. seq. (2003) (seeking to eliminate unfavorable employment practices).

479.See Athena S. Cheng, Affirmative Action for the Female Entrepreneur: Gender as a Presumed Socially Disadvantaged Group for 8(a) Program Purposes, 10 A M. U. J. G ENDER SOC. POL’Y & L. 185, 219–20 (2001) (describing the effects the “glass ceiling” has on pay scales and promotions); see also Sinead McLoughlin, High Court Study:

Choosing a Primacy Approach: Chief Justice Christine M. Durham Advocating States Rights in Our Federalist System, 65 A LB. L. R EV. 1161, 1162 (2002) (discussing the “glass ceiling” for women in the American law profession).

See generally David D. Kumar, In This Issue: Higher Education in the 21st Century: Trends in Postsecondary Science in the United States, 585 A NNALS AM. ACAD . POL. & S OC. SCI. 124, 130–31 (2003) (providing statistics on the effect of the “glass ceiling” on women scientists in scholarly institutions).

480.See Scott A. Caplan-Cotenoff, Parental Leave: The Need for a National Policy to Foster Sexual Equality, 13 A M. J.L.

& M ED. 71, 74 (1987) (discussing the historical scarcity of legislation for pregnant women in the workplace); Edith L. Pacillo, Expanding the Feminist Imagination: An Analysis of Reproductive Rights, 6 A M. U. J. G ENDER & L. 113, 129 (1997) (reviewing discrimination of women in the workplace); Sarah Weddington, Symposium, Reflections on the Twenty-Fifth Anniversary of Roe v. Wade, 65 A LB. L. R EV. 811, 820 (1999) (examining policies concerning pregnancy in the field of education).

481.See Richard Nangle, Women Get Primer on Finances, W ORCESTER TELEGRAM & G AZETTE , June 10, 2001, at A1; see also Charlotte Chiu & Kevin T. Leicht, Changing Employment Statuses in the Practice of Law: When Does Fem- inization Increase Equality?: The Case of Lawyers, 33 M ASS . L. R EV. 557, 572 (1999) (asserting the difference in salaries in the legal profession between genders). See generally Amy S. Wharton, Feminism at Work, 571 A NNALS AM. ACAD . POL. & S OC. SCI. 167, 171 (2000) (providing that women earn less than men).

482.See Nangle, supra note 481, at A1; see also Jessica Michelle Westbrook, Resolving the Dispute Over When Attorney's Fees Should Be Awarded Under ERISA in Two Words: Plaintiff Prevails, 53 A LA. L. R EV. 1311, 1323 (2002) (dem- onstrating that women receive less private pension than men). See generally Jonathan Barry Forman, The Tax Treatment of Public and Private Pension Plans Around the World, 14 A M. J. T AX & P OL’Y 299, 360 n.164 (1997) (explaining that men accumulate more underfunded pensions because of men’s higher earnings). 142New York International Law Review[Vol. 16 No. 2 The average American woman works fewer years (27 as compared to 39 for the average man) and, as a result, in 1998, collected an average monthly Social Security check that was almost 25 percent less than the average man’s ($665, compared to $864). 483 In 1996, 71 percent of the nation’s four million elderly poor were women, and the poverty rate for elderly women is almost twice as high as the rate for elderly men. 484 A 1999 survey found that 41 percent of all American women, ages 25 to 55, were worried that they will live at the poverty level in retirement. 485 Internationally, the U.S. is one of the only industrialized nations that has failed to sign or ratify the 2001 Kyoto Treaty. 486 Moreover, the U.S. also refused to sign or ratify the 1972 Bio- logical Warfare Treaty, 487 the 1972 Anti-Balistic Missile Treaty, 488 the 1991 (Ottawa) Land Mine Treaty, 489 the Offshore Banking Treaty, 490 the 2001 Small Arms Traffic Treaty, 491 the 483.See Nangle, supra note 481, at A1; see also Manuelita Ureta, Women, Work and Family: Recent Economic Trends, 19 N. I LL. U. L. R EV. 57, 63 (1998) (providing that on average, women work four hours less per week than men). But see Geoffrey T. Holtz, Social Security Discrimination Against African-Americans: An Equal Protection Argument, 48 H ASTINGS L.J. 105, 122 (1996) (stating that the Supreme Court has struck down Social Security provisions that work to the disadvantage of women).

484.See Nangle, supra note 481, at A1; see also Karen C. Burke & Grayson M.P. McCouch, The Impact of Social Secu- rity Reform on Women's Economic Security, 16 N.Y.L. S CH. J. H UM . RTS. 375, 379 (1999) (stating that the pov- erty rate for elderly women is almost twice as high as it is for elderly men); M.L. Reig, The Unspoken Poor: Single Elderly Women Surviving in Rural America, 9 E LDER L.J. 257, 257 (2001) (displaying the extreme circumstances of elderly women in poverty).

485.See Nangle, supra note 481, at A1; see also Lorraine Schmall, Symposium, The Future of Employee Benefits Law: A John Marshall Law Review Symposium: Women and Pension Reform: Economic Insecurity and Old Age, 35 J. M AR- SHALL L. R EV. 673, 675 (2002) (providing that women face additional challenges in saving for retirement). See generally Jayne Elizabeth Zanglein, Investment Without Education: The Disparate Impact on Women and Minorities in Self-Directed Defined Contribution Plans, 5 C HI.-KENT EMPLOYEE RTS. & E MP. POL’Y J. 223, 226 (2001) (describing the difficulties women must endure in order to earn significant retirement benefits).

486.See Bob Barr, Protecting National Sovereignty in an Era of International Meddling: An Increasingly Difficult Task, 39 H ARV . J. ON LEGIS . 299, 321 (2002) (reasoning why the United States has not ratified the Kyoto Treaty); see also Anthony Lathrop, People of the Caribou in the Land of the Oil: Climate Change, the Venetie Decision, and Oil Development in the Arctic National Wildlife Refuge, 8 W IS. ENVTL . L.J. 169, 169–70 (2002) (stating that the U.S.

has continually refused to sign the Kyoto Treaty). See generally Senator Frank H. Murkowski, The Kyoto Protocol is not the Answer to Climate Change, 37 H ARV . J. ON LEGIS . 345, 345–46 (2000) (rationalizing the United States’ decision not to sign the Kyoto Treaty).

487.See Mark A. Drumbl, Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81 N.C. L. R EV. 1, 113 n.429 (2002) (stating that the United States has refused to commit to the 1972 Biological Weapons Convention).

488.See Major Robert A. Ramey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 A.F. L. R EV. 1, 104–05 (2000) (providing that the Anti-Ballistic Treaty has been criticized and the United States is considering withdrawing from the Treaty).

489.See Matthew Burton, Assigning the Judicial Power to International Tribunals: NAFTA Binational Panels and For- eign Affairs Flexibility, 88 V A. L. R EV. 1529, 1580 (2002) (proclaiming that the United States has refused to sign the Ottawa Land Mine Treaty).

490.See generally Jonathan I. Edelstein, Anonymity and International Law Enforcement in Cyberspace, 7 F ORDHAM INTELL . PROP . M EDIA & E NT. L.J. 231, 267–68 (1996) (providing that offshore banking is now being con- trolled by bilateral treaties between national governments).

491.See Raymond Bonner, 21 Nations Seek to Limit Traffic in Light Weapons, N.Y. T IMES , July 13, 1998 (establishing that the United States will not sign a treaty regulating small arms traffic). Summer 2003] Comparing Islamic Law and Anglo-American Law143 1994 Law of the Sea Treaty, 492 and the 1989 Convention on the Rights of the Child. 493 All of these treaties could have a profound effect on women and children. Human Rights Under Islam The “Universal Islamic Declaration of Human Rights” is based on the Holy Qur’an and Sunnah and has been compiled by eminent Muslim scholars, jurists, and representatives of Islamic movements. 494 The document was proclaimed by the Islamic Council to mark the beginning of the 15th century of the Islamic Emancipation. The International Conference on the Prophet Mohammed, held in London from April 12–15, 1980, declared the Islamic Decla- ration of Human Rights to be a fundamental document. 495 The life, honor, and property of all citizens in an Islamic State are considered sacred, even if a person is not a Muslim. 496 The doctrine of personal responsibility is a cardinal feature of Islam—people shall reap what they sow. 497 Despite the fairness of the Holy Qur’an, Muslim women’s rights are being marginalized in the areas of family law, including marriage and divorce, inheritance, education, the workplace, and politics. Conclusion Bernard Lewis, in his book, What Went Wrong, Oxford Press, 2002, states that Muslim sexism is the culprit in Muslim countries and that women have been relegated to inferior positions as low as slaves, thus depriving the Islamic world of the talents and energies of half its people, and entrusting crucial early years of the upbringing of the other half to illiterate and downtrodden mothers. 492.See Robin Kundis Craig & Sarah Miller, Ocean Discharge Criteria and Marine Protected Areas: Ocean Water Qual- ity Protection Under the Clean Water Act, 29 B.C. E NVTL . AFF. L. R EV. 1, 11–12 (2001) (stating that the United States has not ratified the Law of the Sea Treaty).

493.See Ann Scott Tyson, Tough Calls in Child-Soldier Encounters, C HRISTIAN SCI. M ONITOR , June 27, 2002, at 3 (providing that an estimated 300,000 children serve as child warriors in a dozen conflicts around the globe, and over 2 million children have been killed and 4 million have been disabled in conflicts in the last decade). But see Eric K. Klein, Dennis The Menace Or Billy The Kid: An Analysis of the Role of Transfer to Criminal Court In Juve- nile Justice, 35 A M. CRIM . L. R EV. 371, 410 n.204 (1998) (stating that the United States signed the Convention on the Rights of the Child in 1995).

494. Universal Declaration of Human Rights, Sept. 19, 1981, 21 D HUL QAIDAH 1401. See generally M. Cherif Bassiouni, Protection of Diplomats Under Islamic Law, 74 A M. J. I NT’L L. 609, 629 (1980) (stating that Muslim countries support the principles in the Universal Declaration of Human Rights); Freamon, supra note 5, at 9–10 (discussing the influential nature of the Universal Declaration of Human Rights).

495. Universal Declaration of Human Rights, supra note 494. See generally Andrea E. Bopp, The Palestine-Israeli Peace Negotiations and Their Impact on Women: This Side of Peace: A Personal Account: By Hanan Ashrawi, 16 B.C.

T HIRD WORLD L.J. 339, 344–45 (1996) (discussing the Islamic Declaration of Human Rights); Johan D. Van der Vyver, Universality and Relativity of Human Rights: American Relativism, 4 B UFF . H UM . RTS. L. R EV. 43, 62 (1998) (explaining the relation between the Islamic Declaration of Human Rights and the Holy Koran).

496. Holy Qur’an (Al Hujurat) 49:13.

497. Holy Qur’an (Al Baqarah) 2:134. 144New York International Law Review[Vol. 16 No. 2 There is no such thing as “Muslim sexism.” The term should be “cultural sexism.” Islam advocates equality, fairness, and the education of women. 498 In the Middle Ages, Muslim society gave greater rights to women than did Western soci- ety, as Mr. Lewis so aptly points out. However, Mr. Lewis says that women’s rights have radi- cally changed. In December 2002, I went to Amaan, Jordan, to begin adoption proceedings.

Women were working in high positions in the Ministry of Social Development, and in other government ministries as assistant ministers, department heads, and liaisons. I saw women business owners, physicians, and professionals. The head of an orphanage, who was a woman, was working on her Ph.D. in behavioral science. The head military representative in another orphanage was a woman. Moreover, the representative of the Jordanian Royal Commission on Human Rights was a well-dressed, beautiful, and professional woman. I did not find any “rele- gation of women to inferior positions.” They receive equal pay for equal work, a concept that still does not exist in the U.S. today. In fact, American women are receiving 80 percent of what American men receive for doing the same work, as my article has stated. American women, in the most advanced country in the world, are being relegated to inferior positions because of their sex.

Jordanian women, who were walking around Amaan wore the hijab (head-scarf ) in pub- lic, but inside the buildings, the same women were dressed in modern Western-style clothing.

Western society interprets the hijab as a tool of subjugation of women, when in reality, the head-scarf is viewed as a tool of liberation and protection by Muslim women. Most of the Jor- danian women that I saw in the workplace also had children at home. These women were far from illiterate.

On a trip to Morocco in 2002, I saw Moroccan women working in all occupations: attor- neys, judges, heads of businesses, professors, and ministers in various government ministries.

They are receiving equal pay for equal work, and Morocco is a third-world country. I also found the Moroccan women to be very modern and stylishly dressed. Moreover, these women control many of the decisions made in the home. The women I saw were happy, active, edu- cated women, and not the least bit “downtrodden.” They also had children at home, and were educating their children.

Another article, “Why Feminism is AWOL on Islam,” by Kay S. Hymowitz, appeared in City Journal, Winter 2003. The article focuses on the extremes in Islam. Saudi Arabia practices an extreme form of Islam called Wahabiism, which is akin to far right fundamentalist Chris- tianity in the U.S. In Saudi Arabia, the practice of complete segregation of men and women is a product of cultural extremism, not Islamic extremism. The Holy Qur’an does not say that a woman cannot drive, speak to men, or have classes with men. Moreover, the Holy Qur’an states that a woman should not cover her face, as women wearing the abaya in Saudi Arabia do.

Another extreme example of Islamic interpretation is in Afghanistan, where women, because of an extreme regime, were forced to give up education, which the Holy Qur’an stresses is the duty of all Muslims. Afghan women were forced to give up all their freedoms, and to give up even their identities. Islam clearly forbids all of these extremes. 498.See Holy Qur’an (Al-Hujarat) 49:13; see also Holy Qur’an, (Al-Iqraa) 96:1. Summer 2003] Comparing Islamic Law and Anglo-American Law145 The article in the City Journal states that women in the United Arab Emirates are beaten by their husbands. This practice of beating is, again, in direct contradiction of the Holy Qur’an, as my article has addressed. In the U.S., too, there is a huge problem with violence against women—one million American women a year suffer non-fatal violence by an intimate partner. 499 That means that 1 out of 3 American women suffer some type of physical assault by intimates in their lifetime.

Honor killing, still practiced in India, Pakistan, and some Arab countries, is very much forbidden by the Holy Qur’an. So is gang rape. Again, these are extreme cultural practices that are completely condemned by the Holy Qur’an, just as they are here. Honor killing exists in the U.S., but it is an extreme.

Extremes exist both in Islamic countries and in the U.S. The situation in the U.S. is far from perfect, as my article points out. An American woman is raped every minute, is physically abused more than anyone would like to know, is receiving only 80 percent of the pay men receive, and is often unable to rise to her highest point in the working world because of the “glass ceiling” and the “good-old-boy network.” Both Islamic countries and the United States should concentrate on improving the position of women, and counter the extremist and nega- tive elements that exist in both societies. 499. See supra note 139.